The Gauteng High Court in Johannesburg has dismissed Jacob Zuma and Thabo Mbeki’s bid to force the removal of retired Justice Sisi Khampepe from the apartheid prosecutions inquiry.

• President Cyril Ramaphosa appointed retired Constitutional Court justice Sisi Khampepe to investigate accusations that apartheid atrocity cases identified by the Truth and Reconciliation Commission (TRC) were deliberately stymied.
• Former Presidents Jacob Zuma and Thabo Mbeki launched separate applications for Khampepe to recuse herself as the inquiry chairperson, on the basis of real or perceived bias. She dismissed those applications.
• In a two-one split ruling, the Gauteng High Court in Johannesburg has now dismissed Zuma and Mbeki’s latest legal bid to force Khampepe’s removal.

In a two-one split ruling, the Gauteng High Court in Johannesburg has dismissed Jacob Zuma and Thabo Mbeki’s bid to force the removal of retired Justice Sisi Khampepe from the apartheid prosecutions inquiry – because the former presidents failed to get Chief Justice Mandisa Maya’s permission to sue her.

Khampepe was appointed to chair a commission of inquiry into the ANC government’s alleged interference in the prosecution of more than 300 cases identified by the Truth and Reconciliation Commission (TRC). Both Mbeki and Zuma’s administrations have been implicated in that alleged interference, which resulted in apartheid-era prosecutions not being pursued for many years.

Both former presidents previously tried and failed to force Khampepe’s recusal from the commission, on the basis of real or perceived bias. They then sought her recusal in the High Court.

In a ruling supported by Judge Selby Baqwa, acting Deputy Judge President Thifhelimbilu Mudau on Monday morning 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 purpose of section 47 – to guard the integrity of the judiciary as an institution – would be defeated if judges could be compelled to participate in proceedings without the protective filter of prior consent,” Mudau stated.

READ | Ramaphosa says he asked Justice Khampepe to step down as TRC inquiry chair

Although Khampepe was retired, he said, she “continues to perform public service as chairperson of a commission of inquiry”.

“In doing so, she remains bound by her judicial oath and the ethical standards that attach to her office. She is entitled to the same protections as a judge in active service, precisely because the threats to judicial independence – vexatious litigation, personal attacks, and attempts to influence or intimidate – are no less real in the commission context.”

Mudau further pointed out that Zuma’s evidence in support of his bid to force Khampepe to step down demonstrated exactly why judges needed the protection offered by section 47 of the Superior Courts Act.

“[Zuma] makes serious personal accusations against Justice Khampepe,” the judge said.

“At paragraph 36 of the founding affidavit, he refers to ‘my own personal reluctance to the chairperson given her leading role in writing and handing down the two judgments which led to my unfair, improper and irregular detention without trial in July 2021. At paragraph 39, he alleges ‘actual bias’ and ‘gross misconduct.’ At paragraph 43, he refers to ‘the attempts to criminalise the exposure of corruption’. At paragraph 84, he alleges ‘prima facie violation of the provisions of section 8 of PRECCA [Prevention and Combating of Corrupt Activities Act], which is a criminal offence’,” Mudau found.

These were “not mere administrative gripes; they are direct attacks on the character and integrity of a retired judicial officer”, Mudau said.

While Zuma and Mbeki contended that Khampepe was serving as a commissioner in an inquiry and not as a judge, and therefore they were not required to seek Maya’s permission to sue her, Mudau dismissed that argument as “illusory” – particularly given that Zuma had attacked her for writing the ruling that jailed him for contempt of the Constitutional Court.

“The fact that two former presidents join forces, and in the case of the [Zuma], to attack a retired judge of the Constitutional Court, only underscores the need for the protective mechanism of section 47. If such powerful litigants can take legal action against a judge without prior consent, the potential for abuse is manifest,” he said.

READ | Khampepe has ‘no one to protect her’, ‘left out to dry’, court hears

While noting that President Cyril Ramaphosa had told the court that he had asked Khampepe to step down after discovering that she had served on the TRC’s amnesty committee and had worked at the National Prosecuting Authority (NPA) – facts that have been publicly known for years – Mudau said this did not alter the need for the judiciary to be protected “from all litigants, regardless of their status or the perceived merit of their claims”.

“The fact that the president now shares those concerns cannot cure a fundamental jurisdictional defect,” he said.

In his recusal case against Khampepe, Zuma had argued that the retired justice – who ordered the then Public Protector Busisiwe Mkhwebane to personally pay the costs of her failed Reserve Bank report litigation because of apparent dishonesty – should be ordered to personally pay the costs of his litigation for “the spurious and patently meritless technical points taken” in her response.

After pointing out that Khampepe was correct in arguing that Zuma and Mbeki needed Maya’s permission to sue her, Mudau stressed that this “technical point”… is not a mere technicality.

“It is a jurisdictional prerequisite that goes to the very competence of this court to hear the matter. The fact that [Zuma and Mbeki] chose to ignore this requirement and now seek to punish [Khampepe] for raising it is further evidence of the need for the protective mechanism provided by section 47. In any event, it can never be said that [Khampepe’s] conduct – in raising what essentially amounts to a point of law – materially deviated from what is expected of a professional in her position, such as to warrant censure in the form of a de bonis propriis costs order.”

He ordered Zuma and Mbeki to pay the legal costs of Khampepe and her commission.

The dissenting judgment, given by Judge Lebogang Modiba, was not included in Mudau’s ruling.