The Constitutional Court has dismissed former presidents Jacob Zuma and Thabo Mbeki’s bid to have retired Justice Sisi Khampepe recused from an inquiry into alleged political interference in apartheid-era Truth and Reconciliation Commission cases.
The apex court handed down its judgment on Monday, allowing Khampepe to remain as chairperson of the Judicial Commission of Inquiry.
However, it granted the two former presidents leave to appeal the High Court’s ruling.
Justice Leona Valerie Theron said: “On application for leave to appeal directly from the High Court of South Africa, Gauteng Division, Johannesburg, leave to appeal is granted. The appeal is partially upheld.”
She said the High Court’s order was set aside and replaced.
“The point in limine raised by the first to fifth respondents in respect of section 47.1 of the Superior Courts Act 10 of 2013 is dismissed,” Theron said.
She added: “The application to review the ruling delivered on 30 January 2026 by the Chairperson of the Judicial Commission of Inquiry to inquire into allegations regarding efforts or attempts having been made to stop the investigation or prosecution of Truth and Reconciliation Commission cases, dismissing the recusal application, is dismissed.”
Zuma and Mbeki challenge bias concerns
Theron said the application for condonation for the late filing of the explanatory affidavit was refused, with costs.
“Except for the order, which I have just read, relating to the seventh respondent’s application, each party is to pay their own costs in the High Court and in this Court,” she said.
Zuma and Mbeki had challenged a Johannesburg High Court judgment dismissing their application to have Khampepe removed from the inquiry.
The former presidents argued that Khampepe’s failure to disclose the full extent of her previous role in the National Prosecuting Authority (NPA), as well as her involvement in earlier TRC hearings, created a reasonable apprehension of bias.
The High Court, however, found that it did not have jurisdiction to determine the recusal application without prior permission because Khampepe is a retired judge.
In a majority judgment, supported by two judges, the court upheld a preliminary objection raised by the Khampepe Commission.
Zuma and Mbeki argued that the finding was an error of law and that the High Court should also have dealt with the merits of their recusal application.
They further challenged the decision to issue only the majority judgment without the dissenting judgment.
“The impact thereof is to unjustifiably limit the constitutional rights of the applicants and other interested members of the public. Such a step is unprecedented and inimical to the interests of justice and the proper administration thereof,” they said in court papers.
Former presidents granted leave to appeal
They argued that failing to deal with the merits could result in piecemeal litigation, with the Supreme Court of Appeal or Constitutional Court ultimately having to consider the substantive issues.
“Having seemingly accepted this principle during the hearing, the majority judgment went on to breach and deviate from it without offering any explanation,” they argued.
“This is a fundamental failure of justice, breach of the rule of law and the right to have a dispute resolved by the application of the law as enshrined in section 34 of the Constitution,” they said.
The former presidents also argued that Khampepe, in chairing the commission, was not performing judicial functions and therefore should not have been subject to the requirement for prior permission.
“Commissioner Khampepe in chairing the commission of inquiry is not providing a service as a judge or performing judicial functions,” they said.
The inquiry is investigating allegations that political interference influenced decisions not to prosecute apartheid-era cases that were referred for further investigation or prosecution following the TRC process.
simon.majadibodu@iol.co.za
IOL News
