Zuma takes Khampepe recusal battle to Constitutional Court
· Citizen
Former president Jacob Zuma has escalated his bid to remove Judge Sisi Khampepe as chair of the Truth and Reconciliation Commission (TRC) cases inquiry to the Constitutional Court.
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Zuma filed an urgent application at the apex court, challenging a Gauteng High Court ruling that dismissed his attempt to have Khampepe recuse herself.
High court ruling
Last month, a full bench of the Gauteng High Court in Johannesburg rejected an application by Zuma and former president Thabo Mbeki seeking Khampepe’s removal.
The two argued that her past judicial roles compromised her impartiality in presiding over the commission of inquiry into stalled prosecutions of apartheid‑era crimes identified in the TRC report.
In a ruling supported by Judge Selby Baqwa, acting Deputy Judge President Thifhelimbilu Mudau found that Zuma and Mbeki had failed to comply with section 47 of the Superior Courts Act, which requires litigants to obtain the Chief Justice’s permission before they are able to launch legal action against a judge.
The judgment given by Judge Lebogang Modiba was not included in Mudau’s ruling.
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ConCourt application
Not satisfied with the ruling, Zuma has now taken the fight to the apex court.
In his application, Zuma argues that the High Court erred by releasing only the majority judgment and excluding Modiba’s 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.”
Section 47
Zuma argues that the High Court erred in finding that section 47 applies to retired judges, especially those appointed by the president to chair a Commission of Inquiry.
He contends that serving as Chairperson of a Commission is not a judicial function and that a retired judge no longer holds judicial office or performs judicial functions, thereby rendering section 47 inapplicable.
Zuma also argued that the High Court breached the rule against piecemeal litigation by not addressing the merits of the case, despite having seemingly accepted this principle during the hearing, thereby forcing the Constitutional Court or the Supreme Court of Appeal to act as a court of first instance or remit the matter.
The former president further alleges that the High Court misapplied the doctrine of stare decisis and erred in its punitive costs order, failing to apply the Biowatch principle.
‘Troubling judgment’
The Jacob Zuma Foundation spokesperson, Mzwanele Manyi, said the application arises from a “deeply troubling judgment” of the Gauteng High Court.
“It raises serious constitutional, procedural, and legal concerns that go to the heart of the rule of law in our country.”
Justice
Manyi said the High Court delivered what it termed a “majority judgment” without simultaneously providing the dissenting judgment.
“This omission is not a minor procedural defect; it strikes at the core of judicial transparency, accountability, and the constitutional right of all litigants and the public to understand the full reasoning of a court,” Manyi said.
“Justice cannot be administered in fragments. A judgment that withholds part of the Court’s reasoning is, by definition, incomplete and incapable of proper scrutiny. Furthermore, the Court failed to determine the substantive issues before it, including serious allegations that gave rise to a reasonable apprehension of bias, and instead disposed of the matter on technical grounds.
“This approach effectively shields critical questions of accountability from judicial interrogation and undermines public confidence in the administration of justice,” said Manyi.
Safeguarding the Constitution
Manyi said the need to approach the ConCourt is “not a step taken lightly.”
“However, it is necessitated by exceptional circumstances. The Commission continues to operate under legal uncertainty; Time constraints render the ordinary appellate process impractical; The issues raised are constitutional in nature and of national importance; A failure to act urgently would result in irreparable prejudice.
“This matter is not about individuals. It is about safeguarding the constitution, ensuring judicial accountability, and protecting the rights of all South Africans to a fair, transparent, and lawful process. The Foundation reiterates its unwavering commitment to the rule of law, constitutional supremacy, and the proper functioning of democratic institutions,” Manyi said.
Leaked letter
Last week, Zuma condemned the leak of a letter confirming his move to the Constitutional Court after suffering a legal setback linked to the TRC inquiry.
Manyi said the letter was intended only to meet legal requirements and was not meant for public consumption.
“This is standard legal correspondence ahead of an urgent Constitutional Court application. It is procedural, not substantive, and there is nothing newsworthy about it as yet. We caution against the leaking of confidential correspondence for mischievous purposes.
“The letter was only circulated to the parties in the litigation as it is required by legal ethics. We strongly condemn its leaking,” said Manyi.
Recusal
Khampepe’s recusal was supported by President Cyril Ramaphosa, who had initially appointed Justice Khampepe to chair a judicial commission of inquiry last year.
Zuma and Mbeki filed separate applications challenging her continued role, arguing that her past judicial decisions may compromise her impartiality.
In their papers, the duo argued that Khampepe previously served on the TRC amnesty committee and later as Deputy National Director of Public Prosecutions under then-NDPP Bulelani Ngcuka.
They contend that these roles give rise to a “material and disqualifying conflict of interest” regarding the commission’s subject matter and mandate.
However, in January, Khampepe ruled that both applications for her recusal, brought by the former presidents, “must be dismissed”, sparking a review application which the Gauteng High Court dismissed.
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