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The Democratic Alliance (DA) has parliamentary questions waiting on the order paper for answer as soon as normal Parliamentary proceedings resume asking Justice Minister Jeff Radebe whether it is true, as reported by the Mail & Guardian (5 Feb) that he asked the Acting Judge President of the Western Cape to agree to appointing former National Director of Public Prosecutions (NDPP) Mokotedi Mpshe to the Cape bench in an acting capacity; whether he approached the senior judge of the North West Division, and whether he approached any other Judge President in any other division.

The comment attributed to Radebe's spokesperson Tlali Tlali, to the effect that the Constitution and the law allows the Minister to make these appointments does not address the immediate problem. The Constitution allows him to do so after, and unfortunately not in, consultation with the relevant senior judge, meaning there does not have to be concurrence. Tlali Tlali does not address the perception that inevitably arises that this appointment is a reward for Adv Mpshe's decision as NDPP to drop the prosecution of Mr Zuma. The perception is exacerbated by the fact that Adv Mpshe lost his acting capacity as NDPP to none other than Adv Menzi Simelane, the D-G of Justice who used to try to give executive instruction to the former NDPP, Vusi Pikoli. It appears as if a reward had to be sought elsewhere, and that the bench is now treated as an arena of Ministerial grace and favour.

If the Judicial Service Commission were not already constitutionalised as the body largely determining permanent appointments, this new tendency in acting appointments might have manifested itself in permanent appointments. It is the convention that the Judges President of Provincial Divisions should identify the need for acting judges and the persons appropriate for acting appointment. We understand that the convention has been observed, for example, in Gauteng - where Judge Bernard Ngoepe has recommended former SA Human Rights Commission Chairperson Jody Kollapen as an acting judge. The appointment will have widespread support. The convention works - must we codify every single thing in the face of a ruling party that has no real regard for the separation of powers and for the concept of independent institutions? A second question waiting on the order paper asks whether the Minister has taken into account concerns expressed about the constitutionality of the appointment of serving state employees.

Other questions already on the order paper concern the Western Cape's absentee Judge President, Judge Hlophe, who has been granted long leave despite his prolonged absences from the bench in the course of the dispute between himself and the Constitutional Court judges that served before the JSC until that body ducked its duty and declined to complete its enquiry.

The Minister cannot treat the courts like a chess board on which he plays political end games, with judges put into play or out of play like so many chess pieces.