The Democratic Alliance's (DA's) objections to Mokotedi Mpshe's appointment as acting judge in the North West High Court stand, despite his resignation as Deputy National Director of Public Prosecutions, the DA said on Thursday.
Mpshe's resignation from the National Prosecuting Authority (NPA) was no doubt aimed at avoiding a legal challenge of his appointment by Freedom Under Law (FUL), the General Council of the Bar (GCB), and other members of the legal community, DA spokesperson Dene Smuts said.
But his resignation did not satisfy the DA any more than it would satisfy that community, she said.
"All the DA's objections to this acting appointment stand. Since when do we appoint judges from the ranks of persons facing charges, complaints or legal action?"
The DA's application for review of Mpshe's decision as acting National Director of Public Prosecutions (NDPP) to drop the prosecution of President Jacob Zuma on charges of fraud, corruption, racketeering and money laundering was before the court.
"We do not believe that he acted without fear of favour in that case and therefore have to ask how he could bring the impartiality required of a judge to the bench.
"The unhappy business of the alleged plagiarisation of a Hong Kong judgment, for the purposes of the abandonment of the Zuma prosecution, only compounds the problem."
Smuts said that the DA wanted to know from Justice Minister Jeff Radebe whether he "shamelessly did the rounds of the provincial divisions in search of a senior judge who would take advocate Mpshe for an acting appointment to reward him for dropping the presidential prosecution and to compensate him for the appointment of advocate Menzi Simelane as NDPP".
Also, whether Mpshe was appointed for twice the longest normal period applicable to acting appointments - six months - and if so why, and what would follow.
Earlier on Thursday, Radebe vigorously defended his appointment of Mpshe and said his decision stood.
Briefing the media at Parliament, Radebe accused the Law Society of South Africa (LSSA) and the GCB of waging a "politically motivated" campaign against the appointment.
Acting appointments to the Bench were not as a matter of law preceded by any nomination process, he said.
Mpshe had asked for an acting judge appointment and now filled a vacancy in the North West High Court.
Radebe said that as the Cabinet member responsible for the administration of justice, it was his prerogative to appoint acting judges after consulting the senior judge of the court on which the acting judge would serve.
"It is beyond dispute that the appointment of judges is a judicial function. The President appoints permanent judges and the minister appoints acting judges and magistrates," Radebe said.
It was wrong for the GCB to suggest the minister should consult with them (the GCB) and the JSC before deciding on an acting appointment.
"No such provision exists in our law. If anything, I exercised a constitutionally conferred authority when I made this appointment," Radebe said.
There was no reason to believe Mpshe would have the propensity to take the side of the State because he had worked for the National Prosecuting Authority (NPA), except by using the unreliable devices of perception of future actions.
"There is nothing exceptional and therefore unbecoming about his appointment. This is yet another politically motivated complaint disguised as pursuit of the principle of judicial independence, the rule of law, and related principles," Radebe said.
Radebe said that his decision to appoint Mpshe remained valid today as it was when he took it.
The fact that Mpshe had asked the President to allow him to vacate his office with immediate effect, as deputy NDPP, based on personal considerations, could not have affected the position regarding his appointment as an acting judge.
"I would still have held the same view and position regardless of whether or not he left the NPA," he said.
Radebe emphatically rejected suggestions that Mpshe was being rewarded for dropping the case against Zuma, saying he was an honourable person who based his decisions on the law.
Asked on what he based his statement that it was a politically motivated complaint, Radebe said that instead of dealing directly with him on the matter, the LSSA and GCB were using the media. Their going on a "media campaign" indicated it was politically motivated, he said.