ConCourt hearing on Justice Khampepe’s recusal turns on jurisdiction and disclosure

The Constitutional Court on Monday heard arguments in a bid by former presidents Jacob Zuma and Thabo Mbeki to force Justice Sisi Khampepe to recuse herself as chair of the Truth and Reconciliation Commission (TRC) inquiry. The proceedings focused on whether the apex court may hear the matter directly and on complaints about Justice Khampepe’s prior roles and disclosure.

Who asked the court to act and why

Zuma and Mbeki seek direct access to the Constitutional Court to appeal an earlier judgment in which they lost their attempt to have Justice Khampepe removed from the commission. They say she should be recused; one of their arguments is that she was a member of the TRC’s amnesty committee in the late 1990s and had earlier performed duties as the Deputy National Director of Public Prosecutions.

The applicants argue that Justice Khampepe failed to disclose the full extent of those roles and that this omission creates a reasonable apprehension of bias.

Jurisdiction battle over Section 47(1)

Much of Monday’s hearing turned on Section 47(1) of the Superior Courts Act, which requires prior permission from a head of court before a judge may be “hauled before court.” The majority in the earlier judgment accepted a preliminary argument by the Khampepe Commission that, because Justice Khampepe is a judge, even if retired, Zuma and Mbeki should have obtained prior permission.

In contrast, Judge Lebogang Modiba expressed a minority view that Section 47(1) does not apply to retired judges called to serve on commissions.

Arguments heard in the ConCourt

Advocate Dali Mpofu, for Zuma, told the Constitutional Court that if Justice Khampepe is not forced to recuse herself,

“its recommendations will come to naught, zero”

and that pursuing the matter first in the Supreme Court of Appeal would take too long because the commission’s work is due to be completed by December.

Mpofu also said the Constitutional Court should clarify whether a retired judge serving on a commission performs a judicial function for purposes of Section 47(1).

Advocate Ngwako Maenetje, acting for Mbeki, told the court that his client is not avoiding accountability and said that if the court finds the commission properly constituted and Justice Khampepe need not recuse herself, Mbeki is ready to face the commission. Maenetje noted that Mbeki has received a lifeline on a subpoena to testify before the commission until September and said,

“We must get clarity and certainty to ensure the commission is properly constituted – in the interest of my client, the public and the victims,”

adding that

“She made no disclosure. If she had said my role in the NPA had nothing to do with TRC cases in 1998, 1999 it would help. My client asks why she does not come clean,”

referring to Justice Khampepe’s disclosures.

Possible outcomes and next steps

The judges debated what final relief would be appropriate if the court accepts direct access. Options discussed included returning the matter to the commission for Justice Khampepe to reconsider her recusal, or sending it back to the high court if the ConCourt agreed that Section 47(1) does not apply to retired judges serving on commissions.

The applicants indicated they prefer the Constitutional Court to have the final word. If direct access is refused, the former presidents said they would seek leave to appeal to the Supreme Court of Appeal.

What remains clear from the hearing

The ConCourt hearing centred on two legal fault lines: whether the court has jurisdiction to hear the direct access application without prior permission under Section 47(1), and whether Justice Khampepe’s past roles and her disclosure (or lack of it) create a reasonable apprehension of bias. The outcome will determine whether the challenge proceeds in the Constitutional Court, is sent back to other courts, or returns to the commission for reconsideration.