Retired Constitutional Court judge, Justice Sisi Khampepe is being taken to task in the Johannesburg High Court for refusing to recuse herself from the TRC Commission.
Image: File
The Gauteng High Court, Johannesburg was told on Tuesday that retired Justice Sisi Khampepe should have never been hauled before this court because, as a judge, she should have been protected by law.
Advocate Tembeka Ngcukaitobi, acting for the Khampepe Commission in the application by former presidents Jacob Zuma and Thabo Mbeki for her removal as chair of the commission, told the court to strike the matter from the roll.
His argument was that Section 47 of the Superior Court’s Act clearly stated that a judge - which according to his argument includes a retired judge - can never face civil legal proceedings (which includes a review application in this case) prior to the go-ahead of the head of the court. This was not done in this case, he said.
“She is left to dry on her own,” he said. Ngcukaitobi pointed out that Section 47 is the only protection she has, which she is being denied.
Zuma and Mbeki are seeking Justice Khampepe’s removal as chair of the commission probing apartheid-era cases to determine whether there was political interference in not prosecuting those cases.
They argue that her failure to disclose the full extent of her role as deputy years ago in the National Prosecuting Authority, as well as the role she played earlier during TRC hearings, creates a reasonable apprehension of bias.
President Cyril Ramaphosa, who appointed Khampepe as chair to the commission, meanwhile said he is not empowered to remove her and that this is only vested in the court. Advocate Timothy Bruinders, who represents him, argued that the president did not know the facts regarding her past roles at the NPA and the TRC hearings when he had appointed her. If he knew, he would not have appointed her.
Bruinders further argued that today the president is none the wiser about her previous roles, especially at the NPA, as this has not been disclosed to him. It is important not to distrust the chair of the commission because of her previous involvements, which could have a bearing on this commission, he said.
According to Bruinders, Justice Khampepe had a duty to disclose her prior involvement with TRC cases, and it was expected that she would have done so. He told the court that even if the president had the power to remove her, he cannot simply do so. Bruinders described it as a “red herring” because to interfere would be damaging to the public's confidence.
Mbeki’s lawyer, Advocate Ngwako Maenetje, meanwhile defended the fact that she is facing this review application and argued that, as an acting judge, she is not afforded judges’ protection as envisaged in the law. According to him, she is not performing judicial functions at the moment, as she is the chairperson of a commission.
In arguing that her refusal to recuse herself is reviewable, Maenetje said she had a legal duty to disclose her previous associations with the TRC hearings and with the NPA. He said she was closely associated with the TRC matters earlier regarding whether amnesty should be granted or not to implicated parties, and this subject will be canvassed during her current role as chair.
In countering this argument, Ngcukaitobi said the present commission has nothing to do with amnesty. It is to consider whether there was political influence in not prosecuting TRC cases after 2003.
He also pointed out that Justice Khampepe and her team will in the end simply make recommendations to the president, which he does not even have to act on. According to Ngcukaitobi, Justice Khampepe gave well-founded reasons as to why she refused to recuse herself. This included that there are no overlapping roles between her previous work and this commission.
He said Mbeki and Zuma’s fears that she will dig up the past TRC hearings during this commission are baseless, as this is not part of her terms of reference as stated by the president.
The parties are meanwhile expected to wrap up their final arguments by late afternoon, after which the court will reserve judgment.
zelda.venter@inl.co.za