Mpshe's appointment constitutional - Radebe

Thursday, February 18, 2010

Cape Town - Justice and Constitutional Development Minister Jeff Radebe says he acted within the Constitution and his authority as a minister when appointing former acting National Director of Public Prosecutions Mokotedi Mpshe as Acting Judge in the North West High Court.

Mpshe's appointment was met with opposition from various organisations who claimed he would find it difficult to be independent in the current position due to the fact that he was on the government payroll.

The Council of the Bar, the Law Society of SA and Freedom Under Law claimed Mpshe's appointment violated the principle of judicial independence and was unconstitutional.

Radebe said elements of exercising judicial independence were not dissimilar to those exercised in prosecutorial independence as the Constitution provides that for the prosecuting authority to exercise its functions without fear or favour.

"There is no reason to believe that Advocate Mpshe will have the propensity to take the side of the State because he worked for the National Prosecuting Authority except by using the unreliable devices of perceptions of future actions," he said.

"Since he had tried no case, I have no reason to impute from these misplaced perceptions that he will fall short of the impartiality required of him," he said.

The minister said the Supreme Court of Appeal had on numerous occasions clearly expressed the view that members of the NPA were obliged to be impartial and independent. The actions of a judge, permanent or acting, demanded the same.

On the accusation that his nomination and appointment of Mpshe interfered with judicial affairs, Radebe responded: "Acting appointments are not as a matter of law preceded by a nomination process. As a cabinet member responsible for the administration of justice, it was my prerogative to appoint acting judges to other courts and after consulting senior judges on which the acting judge will serve".

Before his appointment to the Acting Judge position, Mpshe had asked President Jacob Zuma to release him as deputy NDPP, citing personal reasons.