By Simon Nare
Former presidents Jacob Zuma and Thabo Mbeki have, in separate applications, called for retired Justice Sisi Khampepe to recuse herself from the Truth and Reconciliation Commission of Inquiry tasked with investigating why certain cases referred to the National Prosecuting Authority (NPA) were never prosecuted.
Justice Khampepe was appointed chairperson of the commission in May 2022 by President Cyril Ramaphosa, but both his predecessors oppose her leadership of the inquiry and have applied for her recusal.
In a statement, the Jacob Zuma Foundation said its patron concurred with Mbeki’s view that Justice Khampepe is conflicted, citing her previous roles as a member of the TRC Amnesty Committee and later as Deputy National Director of Public Prosecutions.
“It is contended that these roles give rise to a material and disqualifying conflict of interest in relation to the subject matter and mandate of the Commission,” the foundation said.
The foundation further alleged that Justice Khampepe engaged in serious misconduct related to a recent recusal application involving the commission’s Chief Evidence Leader, Advocate Ishmael Semenya SC.
“It is alleged that she provided undisclosed legal advice to Adv Semenya SC, including guidance on issues to address and submissions to advance through his legal representative, Advocate Vas Soni SC, in order to defeat the recusal application over which she was to preside,” it said.
If proven, the foundation argued, such conduct would constitute a grave breach of judicial ethics, undermine the principle of audi alteram partem, and compromise the appearance of impartiality.
It added that Zuma would refer the matter separately to the Judicial Service Commission.
The foundation said Zuma also raised an additional ground for recusal, alleging demonstrable personal hostility reflected in Justice Khampepe’s prior judgments involving him, culminating in his detention without trial.
“These circumstances reasonably give rise to an apprehension of bias,” it said.
The foundation stressed that the applications were not an attack on victims of apartheid-era crimes, nor an attempt to obstruct accountability.
“On the contrary, the applicants affirm their full support for victims’ legitimate pursuit of truth and justice,” it said, adding that a process tainted by conflicts of interest and procedural impropriety could not deliver justice and would be vulnerable to being set aside.
It added that justice must not only be done but must be seen to be done, and that the applicants were willing to participate fully in a lawful, impartial and credible process should Justice Khampepe recuse herself or corrective steps be taken by the appointing authority.
The foundation also revealed that Mbeki’s application alleged Justice Khampepe failed to address, and thereby condoned, improper conduct by Advocate Semenya arising from a private arrangement with legal representatives of victims, without disclosure to affected parties.
The inquiry held its pre-hearing engagement late last year and has since complained about a lack of compliance with requests for information.
It has issued several letters to current and former presidents, ministers of police and justice, national and provincial directors of public prosecutions, police commissioners, and directors of special investigations, requesting affidavits.
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