Mpshe appointment is alarming

Daily Dispatch Editorial: There are numerous difficulties with the appointment of deputy national director of Public Prosecutions advocate Mokotedi Mpshe as an acting judge.

The appointment of Mpshe, who famously presided over the decision to drop corruption charges against now-President Jacob Zuma, as an acting judge in the Northern Cape has been widely criticised as yet further erosion of the separation of powers as defined by the Constitution.

Freedom Under Law, a lobby group headed by former Constitutional Court judge Johann Kriegler, has joined the fray.

The organisation pointed to legal precedent where a court had held that a temporary judge who is still a civil servant, and stands to return to his post, “lacks sufficient institutional independence to serve as a judge”. The General Council of the Bar has raised similar concerns.

Mpshe has been “temporarily detached” from his prosecutions post to work in the court for several months to assist in clearing a case backlog. He would return to his position afterwards.

This is clearly untenable. Mpshe is a civil servant, beholden to his employer for a salary and future benefits in his career. How would he conduct himself in cases where his employer is being litigated against? Indeed, how would he conduct himself in criminal prosecutions when prosecutors representing the State would ultimately be his underlings?

There is clearly cause to doubt his ability to act independently as a judge.

The Mpshe matter is alarming also because it is the second instance recently where the Zuma administration appears to have had scant regard for the independence and credibility of the justice system.

Late last year Zuma controversially appointed former director-general of the Justice Department Menzi Simelane as the new director of public prosecutions despite his conduct having been seriously criticised by the Ginwala Commission during hearings into the suspension of the former prosecutions’ boss Vusi Pikoli.

But there is a further dimension to the Mpshe issue and that is his suitability to occupy such a position at all.

Mpshe, as acting head of public prosecutions, withdrew Zuma’s corruption charges citing evidence of a political conspiracy and citing international case law to justify his decision.

However, the judge in the key case, a matter in Hong Kong, that he used to justify the decision later said that Mpshe was wrong to have cited the case and that it he could not see how it applied in the Zuma case. It was also pointed out that large portions of Mpshe’s decision had been plagiarised from the Hong Kong judge’s decision. That on its own casts doubt over Mpshe’s suitability for the bench, even in an acting capacity.