The Johannesburg High Court is hearing an application for the recusal of Justice Sisi Khampepe, chair of the Judicial Commission of Inquiry into apartheid-era crimes.
Image: Itumeleng English / Independent Newspapers
The Gauteng High Court, Johannesburg, has heard allegations that retired Justice Sisi Khampepe has sent emails and WhatsApp messages to advocate Ismael Semenya, which is said to demonstrate gross misconduct on her part.
Advocate Dali Mpofu, acting for former president Jacob Zuma, told a full court (three judges) that a whistleblower has revealed the existence of these emails and WhatsApp messages to Zuma and the applicants want these to be disclosed.
Justice Khampepe was appointed by President Cyril Ramaphosa in May last year to head the Judicial Commission of Inquiry to investigate political interference in the investigation and prosecution of Truth and Reconciliation Commission (TRC) cases.
Former president Thabo Mbeki and Zuma are now asking the court to review and set aside a decision by Justice Khampepe not to recuse herself as chair of the commission.
In the opening to Monday’s court 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 these 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 Justice Khampepe colluded with the commission’s evidence leader, 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 Justice 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.
Most of Monday’s proceedings were taken up by other legal preliminary points raised by mostly the respondents, before arguments on the main application proceeded. Mpofu took issue with the argument by the commission that this application is premature and that the applicants should have waited until the conclusion of the commission’s work.
He questioned how the victims of the Apartheid era crimes would ever receive justice if it later emerged that the commission’s work was tainted. He also argued that the decision by Justice Khampepe not to recuse herself is not valid, as it was not signed off by the commission’s panel.
“How can she still remain if it was not signed off by the other commissioners?” he questioned. Mpofu said if the court agrees with him on this point, it is the end of the matter and “we can all go home".
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.
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.
Mbeki has asked the high court to order that Ramaphosa terminate his appointment of Justice Khampepe and declare all the decisions the commission has taken so far under her null and void. Ramaphosa, meanwhile, is abiding by the court’s decision.
Proceeding
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