By Lehlohonolo Lehana.
The Gauteng High Court in Johannesburg has dismissed an application by former presidents Thabo Mbeki and Jacob Zuma to have retired justice Sisi Khampepe removed from the TRC Inquiry.
The ruling was made on Monday by Judge Thifhelimbilu Mudau, acting deputy judge president of the Gauteng division of the High Court.
“The proceedings are void ab anitio. As they were a nullity from the start, this Court lacks the jurisdiction to entertain them,” read the strongly worded judgement.
The court found that Khampepe, although retired, is still active and, therefore, protected under the Constitution.
“It follows that the application must be dismissed on this basis alone. Its neither necessary nor competent for the Court to consider the other grounds of review raised by the applicants or the question of urgency.”
The court also slammed Mbeki and Zuma for what it termed “direct attacks” on Khampepe’s character and integrity in their founding affidavits.
“If such powerful litigants can take legal action against a judge without prior consent, the potential for abuse is manifest.”
“The first and second applicants are ordered, jointly and severally, the one paying the other to be absolved, to pay the costs of the first to sixth respondents…”
Mbeki and Zuma previously brought applications, first for the recusal of evidence leader, Advocate Ishmael Semenya, and a second for Khampepe to recuse herself. Both bids failed.
Mbeki had asked the high court to order president Cyril Ramaphosa terminate his appointment of Justice Khampepe and declare all the decisions the commission has taken so far under her null and void.
Zuma wanted the high court to declare Justice Khampepe’s conduct in dismissing the recusal application unconstitutional and invalid as well as review and set aside the decision. Alternatively, Zuma had asked the court to review and set aside Justice Khampepe’s decision on the basis of the principle of legality.
Among the grounds sought for Justice Khampepe’s recusal are that she worked for the TRC’s amnesty committee and as Deputy National Director of Public Prosecutions (NDPP) before being appointed to the bench.
Ramaphosa in his response to the court papers, noted that had he been aware of the allegations against Khampepe at the time of her appointment, he would not have selected her.
He stated his intention was to avoid controversy that could undermine public confidence in the commission.
The President added that Justice Minister Mmamoloko Kubayi was tasked with approaching Khampepe to consider stepping down.
However, she declined the request and remains in the role unless a court orders otherwise.
The inquiry was established in May 2025 by presidential proclamation to investigate, among other matters, political interference and obstruction in the post-Truth and Reconciliation Commission (TRC) prosecution of apartheid-era crimes.