By Lehlohonolo Lehana.
A full bench of the Johannesburg High Court heard arguments in the application by former presidents Thabo Mbeki and Jacob Zuma to review retired Justice Sisi Khampepe’s refusal to recuse herself from chairing the Judicial Commission of Inquiry into alleged political interference in Truth and Reconciliation Commission (TRC) cases.
Khampepe has already dismissed applications for her recusal from both former presidents. They have now approached the high court on an urgent basis to overturn her decision.
The heart of Mbeki and Zuma’s complaint for Khampepe’s recusal is that she has too much of an institutional memory, having served as commissioner on the TRC Amnesty Commission. This could prompt “bias”, the two former statesmen have argued.
During the proceedings, counsel acting for Zuma, Advocate Dali Mpofu, argued a preliminary point for most of the morning in which he wanted the commission to disclose alleged emails and WhatsApp messages, as he said this could have a decisive effect on this present application before court.
It is claimed that the whistleblower revealed that Khampepe colluded with the commissions’ evidence leader, Ishmael Semenya, and gave him advice during an application last year for his recusal from the commission. It is claimed that she also told him to give certain “tips” to advocate Vas Soni SC, who had represented him in the recusal application, and that she had “coached” him in how to conduct his case.
Mpofu argued that the commission must reveal this correspondence and be transparent about it as it is important for this case. He demanded disclosure of these alleged communications before the main arguments in the trial started and said Khampepe and the commission should not “play cat and mouse”.
While the commission did not file any court papers dealing with the disclosure of these documents, its advocate, Tembeka Ngcukaitobi, forwarded mostly technical points on why the court should not entertain this preliminary point. His arguments included that this court did not have the competence to hear the main application, so it also could not entertain this preliminary point. The court meanwhile reserved its judgment on this point.
Mbeki has asked the high court to order that president Cyril Ramaphosa terminate his appointment of Khampepe and declare all the decisions the commission has taken so far under her null and void. Ramaphosa, meanwhile, will abide by the court’s decision.
Mbeki’s legal counsel, Advocate Ngwako Maenetje accused Khampepe of failing to make a full disclosure on her prior roles.
In a statement released on Sunday night, Ramaphosa’s office said he “remains committed to seeking justice for the victims of apartheid-era crimes whose cry for justice cannot be swept under the carpet”.
However, he said, the court application in the Gauteng High Court in Johannesburg for Khampepe to recuse herself from the judicial Commission of Inquiry, needs to be concluded.
“President Ramaphosa will act swiftly after the court decision to ensure that the commission of inquiry gets down to business,” the statement said.
The review application continues on Tuesday morning, with the Truth and Reconciliation Commission (TRC) Cases Commission of Inquiry expected to put forward its rebuttal.