Simon Nare
Former presidents Thabo Mbeki and Jacob Zuma have failed in their bid to force retired Constitutional Court justice Sisi Khampepe out as head of the commission of inquiry into the TRC cases, after the country’s apex court ruled against them on Monday.
The court dismissed the pair’s application to have Khampepe’s January refusal to recuse herself reviewed and overturned, meaning she remains at the helm of the inquiry probing claims that the investigation and prosecution of apartheid-era crimes was deliberately obstructed.
However, the court granted the former president’s direct leave to appeal an earlier Gauteng High Court decision, and upheld part of that appeal.
Specifically, the Constitutional Court overturned the High Court’s finding that Mbeki and Zuma first needed the Chief Justice’s consent, under section 47(1) of the Superior Courts Act, before they could bring their review application at all.
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While the judges disposed of that procedural hurdle in the pair’s favour, they went on to reject the substance of their case against Khampepe.
The former presidents had contended that Khampepe’s history with both the Truth and Reconciliation Commission and the National Prosecuting Authority left her too compromised to preside impartially over matters now before the inquiry.
Decades earlier, Khampepe sat as a TRC commissioner and served on its amnesty committee, before going on to hold the position of deputy national director of public prosecutions.
Mbeki and Zuma said that this history bore directly on questions the commission is now probing, among them, what became of cases where amnesty was refused, and whether subsequent prosecutions were quietly derailed.
Three separate judgments emerged from the bench.
One of the three concluded that a reasonable, well-informed observer could indeed suspect Khampepe of being unable to bring an open mind to the inquiry, and would have removed her on that basis.
In reaching that conclusion, the judgment weighed her earlier ties to the TRC and the NPA against the subject matter now before the commission, and noted that President Cyril Ramaphosa himself had conceded, in papers filed with the court, that he would not have chosen Khampepe for the role had he known the full extent of her past involvement.
The majority position, however, held that institutional ties from decades past are not, by themselves, grounds for a reasonable apprehension of bias, and that something more concrete was needed.
Mbeki and Zuma, the judges found, had not shown a close enough factual connection between Khampepe’s earlier work and what she was now called on to decide as chair.
In arriving at that outcome, the court leaned on the long-standing legal standard for recusal: whether a reasonable, properly informed observer, weighing the relevant facts, would suspect the decision-maker of being unable to act with an open mind.
On costs, the court left each side to cover its own legal bills, both in the High Court and before the Constitutional Court.
