ConCourt dismisses Zuma and Mbeki bid to remove Khampepe from TRC inquiry

The Constitutional Court has dismissed former presidents Jacob Zuma and Thabo Mbeki’s application to recuse retired judge Sisi Khampepe from chairing the Truth and Reconciliation Commission (TRC) cases inquiry. The court’s judgments found the challenge wanting on procedural and evidential grounds, leaving the High Court’s earlier orders addressed but the review application itself rejected.

What the court decided

The ConCourt delivered multiple judgments on the matter. One judgment, supported by four judges, would have had Khampepe recused after concluding that a reasonable, objective and informed observer might think she “might not be able to bring an impartial mind” to the inquiry. That judgment noted Khampepe’s view that a temporal boundary existed between the inquiry’s focus and her previous roles, saying her tenure at the TRC and the National Prosecuting Authority (NPA) had ended on or before 2001.

A second judgment, also supported by four judges, reached a different conclusion. It found that the first judgment had approached the inquiry from an “incorrect premise” by focusing on institutional roles without assessing the basis of the evidence, and concluded that Zuma and Mbeki had “fell short” in proving Khampepe’s bias. That judgment stated that it would be insufficient to ground a reasonable apprehension of bias on mere institutional associations.

The third judgment agreed with dismissing the review application, though on different grounds. The ConCourt set aside the High Court’s order but rejected the review application challenging Khampepe’s earlier ruling on recusal. Each party was ordered to pay its own costs in both the High Court and the ConCourt.

Procedural and evidential issues

At the High Court level, the applicants’ challenge failed to meet a procedural requirement under Section 47(1) of the Superior Courts Act, which requires the Chief Justice’s consent before civil proceedings can be brought against a judge. The High Court dismissed the bid for that reason.

Zuma and Mbeki had argued that Khampepe’s past positions including her involvement in the TRC Amnesty Committee and her earlier role at the NPA gave rise to a reasonable perception of bias. The ConCourt’s judgments differed on whether those institutional associations alone were sufficient to establish such a perception.

Key passages from the judgments

“She emphasised that the commission’s mandate was to enquire into alleged efforts to suppress the TRC cases for the period since 2003,”

One judgment noted that Khampepe had found a temporal boundary between the inquiry’s focus and her prior roles. Another judgment emphasised that more than generalised averments about past positions is required to show a reasonable apprehension of bias.

What this means

The ConCourt’s rulings resolve the immediate legal challenge to Khampepe’s participation in the TRC cases inquiry by rejecting the review application brought by the two former presidents. The matter drew attention to how past institutional affiliations are assessed when questions of judicial impartiality arise, with the court’s separate judgments illustrating differing views on that legal test.