By Lehlohonolo Lehana.
Retired justice Sisi Khampepe refused to step down as the chairperson of the Truth and Reconciliation Commission (TRC) of Inquiry into the failure to prosecute apartheid-era crimes.
This development emerged in court papers filed in response to a legal challenge brought by former presidents Thabo Mbeki and Jacob Zuma, who are both seeking her removal from the position.
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 has 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.
In his papers, Zuma wants 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 has 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.
Khampepe’s fellow commissioners are Judge Frans Kgomo and human rights lawyer, Advocate Andrea Gabriel.
While Mbeki was known to support apartheid-era prosecutions, ANC officials and Cabinet members were reportedly opposed to this, including Jackie Selebi, the former national police commissioner, who was one of the 37 ANC leaders refused amnesty by the TRC.
Zuma’s involvement in the TRC dates back to 1998, when he led, alongside Mbeki, “secret indemnity negotiations” with former SADF chief Constand Viljoen and other generals.
The meetings were to discuss criminal accountability for acts committed during the apartheid era and to find a “mutual indemnity mechanism” to prevent criminal prosecutions following the conclusion of the TRC.
The talks were initiated by President Nelson Mandela, who was represented by Mbeki and later, Zuma. The original intention had been to create an amnesty programme to cover political crimes that occurred between the Inkatha Freedom Party (IFP) and the ANC in KwaZulu-Natal and the Highveld.
Over and above the eventual waiving of amnesty for several apartheid-era perpetrators, the TRC’s denial of amnesty to a “Group of 37” – a collective of ANC leadership members – was because of their failure to meet the specific legal requirements of the TRC Act.
While the TRC initially granted a general amnesty, a court later overturned this as the TRC Act specifically required applicants to “indicate, in full, the specific offences for which they sought amnesty”.
After Mbeki had initiated contact with General Viljoen in 1998, his deputy in the ANC, Zuma, later went on to become a key government representative at these high-level talks. This continued after his appointment as South Africa’s deputy president in 1999.
Zuma, Mbeki and the other senior ANC officials who have voiced their opposition will have an opportunity to clarify the motives for their decisions at this inquiry, broadcast live to the nation.