Simon Nare
Former president Jacob Zuma is to pursue a criminal complaint against the chairperson of the Truth and Reconciliation Commission (TRC) cases inquiry, retired Constitutional Court Justice Sisi Khampepe, after losing his bid to have her removed.
Zuma and fellow former president Thabo Mbeki failed in their attempt to force Khampepe out as head of the commission after the Constitutional Court ruled against them on Monday.
In a statement released through the Jacob Zuma Foundation, Zuma accepted that the legal battle to have Khampepe recused had reached its end, but said separate action over her alleged conduct would now follow.
Foundation spokesperson Mzwanele Manyi said Zuma regarded the Constitutional Court outcome as a narrow loss, with four judges finding in favour of the recusal challenge.
“Going forward on the recusal side of things, we are very clear that we’ve reached the end of the road, and that is where the matter ends.
“But the entire matter does not end here. There are two outstanding matters that we want to make sure that they are placed on record,” Manyi said.
The court dismissed the challenge by five judges to four.
Manyi said Zuma would now challenge Khampepe’s conduct over allegations that she shared notes and “coached” evidence leader Advocate Ishmael Semenya when his role in the inquiry was being challenged.
“The lawyers have advised that it’s such a serious matter that it needs to be approached from two fronts. The one front is that a criminal case can be opened, and secondly, the unethical conduct be reported in the Judicial Service Commission. So that’s the next plan of action for the patron,” he said.
Three separate judgments were delivered by the Constitutional Court.
Four judges would have upheld the recusal challenge after finding that a reasonable, well-informed observer could apprehend that Khampepe would not bring an impartial mind to the inquiry.
Four other judges, in a judgment by Justice Mbuyiseli Nuku, rejected the challenge, while Justice Steven Rogers delivered a separate judgment agreeing that the review should be dismissed.
Although Zuma and Mbeki lost the recusal fight, they succeeded on a separate legal issue involving Section 47(1) of the Superior Courts Act.
The Constitutional Court found that the provision, which deals with proceedings against judges, did not apply because Khampepe was retired and chairing a commission of inquiry is not a judicial function exercised by a court of law.
Manyi said Zuma welcomed that part of the ruling.
“The foundation made it clear that it cannot be that protection of the judges extend to a charge that is doing non-judicial function and the patron has made a very clear case that chairing a commission is not a judicial function and therefore section 47 of the Superior Court Act is not triggered,” he said.
“That section, 47(1), applies to judges exercising judicial functions, and should not be extended beyond that context. We regard this as a significant principle and will continue to defend it,” he said.
In their recusal applications, Zuma and Mbeki argued that Khampepe’s previous roles as a TRC commissioner and deputy National Director of Public Prosecutions created a “reasonable apprehension of bias”.
They said her history bore directly on questions the commission is investigating, including what became of cases in which amnesty was refused and whether subsequent prosecutions were deliberately derailed.
The judgment also noted that President Cyril Ramaphosa had stated in court papers that he did not know of Khampepe’s previous roles at the TRC and NPA and would not have appointed her to chair the inquiry had he been aware of them.
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