Simon Nare
Retired Constitutional Court Justice Sisi Khampepe, chairperson of the Truth and Reconciliation cases inquiry, has dismissed separate applications by former presidents Jacob Zuma and Thabo Mbeki calling for her recusal, ruling they had failed to present any proof of reasonable or actual bias.
The commission is investigating allegations that attempts were made to stop the investigation or prosecution of TRC cases.
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In a ruling released on Friday morning, Khampepe said both Mbeki and Zuma had not established any reasonable apprehension of bias, either on the facts or in law, and “fell remarkably short of displacing the presumption of judicial impartiality”.
“The claims, by both former Presidents Zuma and Mbeki, are based simply on generalised suspicions and claims, with no attempt to state what I did or when during those times, that is relevant to the work of this Commission,” she ruled.
The applications relied on Khampepe’s prior service in the TRC Amnesty Committee and her role as deputy National Director of Public Prosecutions, with both former presidents arguing that her involvement in those institutions could give rise to reasonable bias.
Khampepe rejected that contention, ruling that the scope of the inquiry did not require her to revisit or defend decisions linked to the TRC’s prosecutorial recommendations.
“The question of whether apartheid era crimes should be prosecuted is not before this Commission, and therefore the recommendation of the TRC that offenders who were not given amnesty must be prosecuted, does not have to be defended or justified. Nor should such questions feature at all in the work of this Commission.”
She also dismissed claims relating to her work at the National Prosecuting Authority, saying the applicants had provided no evidence tying it to the current proceedings. “Furthermore, there is no evidence at all to suggest that my work at the NPA during 1998-1999 is somehow of direct relevance to the present work of this Commission. Again, they allege but fail to produce the proof,” she ruled.
Khampepe said allegations of bias must be substantiated by a proper factual basis and not rest on speculation or conjecture. She said the party alleging bias bears the burden of proof, and that claims of actual bias require evidence of a “mind which was in fact prejudiced and not open to conviction.”
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She added that applications for recusal must be assessed against settled legal principles, including a strong presumption of judicial impartiality arising from the oath of office and reinforced by judicial training and experience.
Judicial officers, she said, were duty-bound to continue to sit in matters where they are not obliged to recuse themselves, and are presumed to be able to “disabuse their minds of any irrelevant personal beliefs or predispositions”.
“This means that a litigant or an applicant for recusal must present cogent convincing evidence to dislodge the presumption of judicial impartiality. “I therefore rule that both applications for my recusal, brought by former Presidents Zuma and Mbeki, must be and are hereby dismissed,” she ruled.
The ruling could see further delays in the inquiry. Zuma’s counsel told the inquiry he would approach the Judicial Service Commission and could go to court if the recusal bid failed
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