By Simon Nare
Former president Jacob Zuma has threatened to approach the Judicial Service Commission (JSC) and ultimately the courts if the Truth and Reconciliation Commission (TRC) Inquiry refuses to accept that its chairperson, retired Justice Sisi Khampepe, should recuse herself.
Zuma’s legal representative, Advocate Dali Mpofu SC, has told the commission ithat it would be untenable for the former president to appear before an inquiry chaired by Khampepe, given her conduct and her past roles in institutions now under scrutiny.
The commission, established by President Cyril Ramaphosa, is probing why the National Prosecuting Authority (NPA) failed to prosecute cases referred to it by the TRC.
Zuma and fellow former president Thabo Mbeki have applied for Khampepe’s recusal, citing her previous service on the TRC Amnesty Committee and her tenure as deputy national director of public prosecutions.
On Friday, the three-member panel — comprising Khampepe as chairperson, retired Northern Cape Judge President Frans Diale Kgomo, and Advocate Andrea Gabriel SC — heard oral arguments from all parties, including Zuma’s and Mbeki’s legal teams.
Mpofu submitted that Zuma would not participate in proceedings presided over by Khampepe. Should the commission rule against the recusal application, Zuma would first approach the JSC and then the courts — a process Mpofu conceded could delay the inquiry and deny justice to families.
Zuma and Mbeki also questioned how Khampepe handled alleged conflict-of-interest objections against the commission’s chief evidence leader, Advocate Ishmael Semenya SC, as well as her “endorsement” of what they described as a procedurally irregular arrangement between Semenya and the Calata Group’s counsel regarding the leading of evidence.
Mpofu disputed Kgomo’s interpretation that Zuma’s position amounted to abandoning the commission, as he had done with the State Capture Commission.
“You are reading that paragraph wrong. He is saying it’s tainted by demonstrable or reasonable perceived bias, then it would be unattainable. Now of course that does not suggest anything about ‘out of here’,” Mpofu said.
“All it suggests is that should this commission find that this ground, as serious as it is, is not sufficient, and the chairperson should nevertheless continue — having given advice to Advocate Ishmael Semenya SC — then former president Zuma will exercise the options provided for in the Constitution.”
Mpofu argued that no individual should be expected to appear before a process chaired by a judicial officer who has demonstrated what he described as unprofessional conduct. He added that Khampepe had challenged allegations that she advised Semenya.
He dismissed arguments that Khampepe’s previous work at the TRC differed from the mandate of the current inquiry.
“That argument misses the point. You can’t expect a so-called reasonable person to make these fine distinctions about where one mandate ended and another began,” Mpofu said.
“The reasonable person will ask, in broad terms, whether it is reasonable to apprehend bias if a decision-maker is now sitting in judgment over decisions he or she was previously involved in.”
Addressing the Calata Group — whose legal action compelled Ramaphosa to establish the inquiry — Mpofu insisted Zuma was not seeking to deny families justice.
The group is named after Lukhanyo Calata, whose father, Fort Calata, was one of the Cradock Four, anti-apartheid activists abducted and murdered by apartheid security forces in 1985.
Mpofu said Zuma and Mbeki were freedom fighters committed to seeing the cases finalised and justice delivered to affected families.
Judgment on the recusal applications was reserved.
INSIDE POLITICS
