TRC ROULETTE: Ex-presidents fail in bid to remove Sisi Khampepe as head of judicial inquiry

The Constitutional Court on Monday dismissed former presidents Thabo Mbeki and Jacob Zuma’s application for the recusal of retired judge Sisi Khampepe, chair of a highly significant judicial inquiry into possible political interference in post-TRC apartheid prosecutions.

Former presidents Thabo Mbeki and Jacob Zuma will have to appear before retired judge Sisi Khampepe after the Constitutional Court on Monday dismissed their application for her recusal. Khampepe is leading the inquiry into outstanding issues arising from the Truth and Reconciliation Commission (TRC).

Mbeki and Zuma have pushed back against the inquiry since its inception. Now, with the commission wrapping up in December, all eyes are on when the two former heads of state will present their evidence.

The apex court’s decision, read by Justice Leona Theron, was delivered across three separate judgments. The court resolved a preliminary jurisdictional matter but remained split on the merits of whether a “reasonable apprehension of bias” existed due to Khampepe’s legal history.

The court opted to resolve the merits of the recusal directly rather than sending the matter back to the high court. However, the minority judgment authored by Justice Theron, with three judges concurring, held that the recusal should have been granted.

Khampepe’s overlapping historical roles at the TRC and the National Prosecuting Authority placed her on both the “referring and receiving end” of TRC cases, leaving her in a position to potentially make adverse findings against her former organisation and colleagues, the judges noted.

The minority judgment added that the 2003 “temporal boundary” Khampepe relied on was irrelevant, given that the commission had already summoned witnesses to testify on events predating that year. Consequently, it concluded that “an objective observer would reasonably apprehend bias”.

The second judgment, authored by Acting Justice Robert Nugent, dismissed the recusal application after finding that the former presidents failed to establish a reasonable apprehension of bias. Justice Owen Rogers concurred with Nugent’s ruling in a third judgment, securing the five-judge majority needed to dismiss the application.

Rogers argued that bias should be treated as “an independent ground of review” under the principle of legality for commissions of inquiry, rather than as a subset of procedural irrationality.

The commission, appointed by President Cyril Ramaphosa, consists of Khampepe, retired Northern Cape Judge President Frans Kgomo and advocate Andrea Gabriel, SC.

In a surprise move, Ramaphosa joined the court action alongside his predecessors. He claimed to have been unaware of Khampepe’s history as a TRC commissioner, as well as her roles in the NPA and Constitutional Court, when he appointed her.