A full bench of the Gauteng High Court in Johannesburg has dismissed the bid by former president Jacob Zuma and Thabo Mbeki to have retired Justice Sisi Khampepe recuse herself as chairperson of the commission of inquiry into stalled prosecutions of apartheid-era crimes identified in the Truth and Reconciliation Commission (TRC) report.
This means Khampepe will remain as chairperson of the TRC inquiry.
Judgement
Acting Deputy Judge President of the High Court, Judge Thifhelimbilu Phanuel Mudau, handed down the judgment on Monday.
“The point in Limine raised by the first to fifth respondents is upheld. The applicants’ non-compliance with section 47 of the Superior Courts Act 10 of 2013 renders these proceedings a nullity. The application is dismissed.”
Mudau also dismissed Zuma and Mbeki’s “prayer for punitive and personal costs against Khampepe.
Appointment
Khampepe’s recusal was supported by President Cyril Ramaphosa, who initially appointed Justice Khampepe last year to chair a judicial commission of inquiry to determine whether attempts were made to prevent the investigation and prosecution of apartheid-era crimes.
This, after the 23 families sued him for R167 million in damages over extensive delays in prosecuting apartheid-era crimes recommended by the TRC.
Applications
Zuma and Mbeki filed separate applications challenging her continued role, arguing that her past judicial decisions may compromise her impartiality.
In their papers, the duo argued that Khampepe previously served on the TRC Amnesty Committee and later as Deputy National Director of Public Prosecutions under then-NDPP Bulelani Ngcuka.
They contend that these roles give rise to a “material and disqualifying conflict of interest” regarding the commission’s subject matter and mandate.
However, in January, Khampepe ruled that both applications for her recusal, brought by the former presidents, “must be dismissed,” sparking a review application.
ALSO READ: Khampepe’s legal team argues ‘she has been left out to dry’
‘Packed with insults’
During court proceedings earlier this month, Advocate Tembeka Ngcukaitobi, representing Khampepe, dismissed the claims, insisting there was no overlap between her past judicial work and her current role.
He accused Zuma’s legal papers of being “packed with insults” and said Khampepe was being unfairly targeted.
“She is performing a public duty, yet personal attacks have been directed against her with reckless abandon,” Ngcukaitobi told the court.
“She has absolutely no one to protect her, let’s be serious. She really has no one to protect her, including the very president who appointed her. She has been left out to dry on her own.”
Past judgements
Ngcukaitobi stressed that Khampepe’s past judgments at the Constitutional Court, including those that led to Zuma’s incarceration, had no bearing on her current role.
Zuma’s lawyer, Advocate Dali Mpofu, claimed that a whistleblower had revealed emails and WhatsApp messages allegedly exchanged between Khampepe and Chief Evidence Leader Advocate Ismael Semenya.
Mpofu argued this amounted to gross misconduct and asked the court to review her refusal to recuse herself.
Ramaphosa filed an affidavit agreeing to abide by the court’s decision. His lawyer, Advocate Timothy Bruinders, told the court that the president was not empowered to remove Khampepe, as only the court could do so.
ALSO READ: WATCH: Families slam Mbeki, Zuma over TRC delays as Ramaphosa pledges action
*This is a developing story
