Legal Opinion

Legal opinions

THE APPOINTMENT OF PUBLIC SERVANTS AS JUDGES –DOES IT UNDERMINE THE INDEPENDENCE OF THE JUDICIARY?

A      INTRODUCTION

The fundamental pillar of a democratic society is the independence and impartiality of the judiciary and prosecutors, wherein the respect for the rule of law and the effective protection of human rights are enshrined. The judiciary, prosecutors and lawyers have to exercise their professional responsibilities in an independent and impartial manner without fear, prejudice or victimisation.

The principle of an independent judiciary has its origin in the theory of the separation of powers, wherein the Executive, Legislature and Judiciary form three separate branches of government. A system of checks and balances is operational to prevent the abuse of power by one of the organs to the detriment of the other branches of government and also a free democratic society. [1]

From the above it is clear that unless the judiciary, prosecutors and lawyers are able to exercise their professional duties free from undue influence, impartially and independently, the rule of law will eventually cease to exist.

The appointment of Adv Mokotedi Mpshe SC to the bench of the North West High Court sparked an outcry from various quarters of society. It was stated that he demonstrated “his political pliability – and hence unsuitability for judicial office”.[2]

Paul Hoffman SC was quoted as saying the following: ‘Radebe has, in effect, declared ‘open season’ for the appointment of employees in public administration …to the High Court Bench”.[3]
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LOCUS STANDI OF AN ADVOCATE IN SERVICE OF A DIRECTOR OF PUBLIC PROSECUTIONS OR THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS TO APPEAR ON BEHALF OF THE NATIONAL PROSECUTING AUTHORITY IN CIVIL MATTERS

INTRODUCTION: 

This legal opinion is written as a result of the judgment in the matter of Mark Walter Stevens and 20 others versus Magistrate Theresa Swart NO- Magistrate Germiston and 8 others, which appeared in the South Gauteng High Court, Johannesburg in case number 2012/38742. (a copy of the judgment is attached hereto and marked as Annexure A for ease of reference).

The views expressed herein are my personal views and does not necessarily correspond with or reflect the views of the National Prosecuting Authority or any of the offices within the said Department.

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