By Lehlohonolo Lehana.
Former presidents Jacob Zuma and Thabo Mbeki have objected to the presence of retired Justice Sisi Khampepe as chair of a commission inquiring into decades-long delays in prosecuting apartheid-era crimes.
The commission was established shortly after settlement discussions in April 2025 between President Cyril Ramaphosa and Lukhanyo Calata, son of Fort Calata, one of the “Cradock Four” murdered by apartheid security police in 1985.
Zuma was the first to file an initial objection, Mbeki subsequently filed his own application for Khampepe’s recusal and the two complaints are being treated as overlapping.
Mbeki’s complaint is supported by former ministers Ronnie Kasrils, Brigitte Mabandla, Thoko Didiza and Charles Nqakula.
Mbeki was known to support apartheid-era prosecutions but ANC officials and Cabinet members were reportedly opposed to this, including Jackie Selebi who was part of the 37 ANC leaders refused amnesty by the TRC. Selebi enjoyed Mabandla’s support as minister of justice at the time.
On 7 February 2007, shortly after Adriaan Vlok, the former apartheid minister of law and order, Police Commissioner Johan Van Der Merwe and others were charged for the attempted murder of Reverend Frank Chikane in 1989, Mabandla wrote to Vusi Pikoli, National Prosecuting Authority (NPA) head at the time, stating her “surprise” at the development.
Vlok received a 10-year suspended sentence in a plea deal that resulted in former colleagues and fellow Cabinet members, escaping the prospect of a full trial and more revelations about what the government at the time knew about atrocities committed by state actors.
Zuma and Mbeki, as well as Mabandla, Kasrils, Nqakula and Didiza, presented their arguments before the commission.
Should the commission’s integrity be brought into question or it fails to get off the ground, Zuma, Mbeki and the others can claim they do not need to account; that the commission is “flawed” and that its findings are not to be trusted.
It was a landmark judgment in the Johannesburg High Court in April 2025 that altered the playing field and opened the door to prosecutions.
The court found that the State can prosecute suspects because apartheid was a crime against humanity. It also ruled that there was no time limit on these prosecutions.
The commission was established soon afterwards in May 2025 by presidential proclamation to investigate, among other matters, political interference and obstruction in the post-TRC prosecution of apartheid-era crimes.
The legal teams argued that Khampepe is inherently biased and unable to remain impartial, citing her previous role as a commissioner during the original TRC process.
Advocate Dali Mpofu, representing Zuma, told the commission that his client’s application was grounded primarily in alleged misconduct and bias on the part of Khampepe.
“The main ground raised by (former) president Zuma is the one that relates to alleged misconduct and bias,” Mpofu said.
“That ground is fatal to the entire case.”
Mpofu argued that the manner in which Khampepe was appointed undermined her independence.
Justice Frans Kgomo, a member of the commission panel, questioned Mpofu on Zuma’s affidavit. It describes a relationship of “deep-seated hatred and animosity” between Zuma and Khampepe.
“There is a need for choice of words, is there justification for that? ” Kgomo asked.
“I don’t know. I’m not the one who was sitting in a cell alone. I cannot speak for the deponent’s choice of words. The tribunal can make its own conclusion on why he used such words, “Mpofu replied.
Mpofu has also argued that the chief evidence leader Advocate Ishmael Semenya is conflicted. He said that Semenya, is an interested party in the matter, a witness and has also given legal advice relating to the matter.
He said Zuma’s application rests on three grounds: alleged misconduct and bias, Khampepe’s occupational history, including her previous involvement with the TRC and the National Prosecuting Authority (NPA). And what he described as her utterances, attitudes and hostility linked to Zuma’s detention without trial.
Advocate Nyoko Muvangua, appearing for Mbeki and others, also defended their recusal application.
She dismissed suggestions that Mbeki’s application was opportunistic.
“It is untrue that President Mbeki was not going to file his application had it not been for President Zuma filing his first,” she said.
Muvangua argued: “Bias could be apprehended because a decision maker who was involved in that process could have been incentivised to defend the integrity of their processes. The TRC recommended prosecutions. The continuum follows, and down the line we are told that there was frustration, and the very same person who recommended prosecutions has to enquire one way or the other about the so-called political interferences.”
“A reasonable person would apprehend that a person who participated in shaping the TRC’s evaluative conclusions and prosecutorial pathways may be perceived as being placed in the position of indirectly assessing the success, failure or derailment of the process in which she played a formative role.”
Opposition to the applications was led by Advocate Heward Varney. He was representing the Calata family and other victims’ families, who urged the commission to dismiss the recusal bids.
The commission is expected to consider the arguments before deciding whether Khampepe should continue to chair the inquiry.