Retired Constitutional Court judge, Justice Sisi Khampepe should not have been hauled before the court without the prior consent of the Chief Justice, the court ruled.
Image: File
The Gauteng High Court, Johannesburg on Monday said it did not have the jurisdiction to decide over the application for the dismissal of the application by former presidents Jacob Zuma and Thabo Mbeki for Justice Sisi Khampepe to recuse herself from the TRC inquiry.
In a majority judgment consented to by two judges, the court upheld a preliminary argument by the Khampepe Commission that as Justice Khampepe is a judge, although retired, Zuma and Mbeki should have obtained prior permission to haul her before the court.
The court said they should have first asked the permission of Chief Justice Mandisa Maya before they launched the review proceedings. This is per Section 47 of the Superior Courts Act, which states that the head of court must give the go-ahead before legal proceedings may be instituted against a judge. This is, amongst others, to safeguard judges from being hauled to court by aggrieving parties who are unhappy about remarks a judge might make about them in judgments.
Advocate Tembeka Ngcukaitobi earlier argued on behalf of the commission that the matter should be struck from the roll as it is not properly before the court. His argument was that Section 47 of the Superior Courts Act clearly stated that a judge - which 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.
“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 sought 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 argued 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, did not oppose the application but said he is not empowered to remove her and that this is only vested in the court.
The former presidents argued that Justice Khampepe’s refusal to recuse herself as chairperson of the TRC Commission investigating allegations of political interference in the prosecution of TRC cases should be overturned.
While the respondents opposed the application on its merits, they also forwarded several preliminary arguments, including that the court did not have jurisdiction over her due to the lack of prior consent for instituting the proceedings.
The court accepted the arguments by Ngcukaitobi that although Justice Khampepe is a retired judge, Section 47 applies with equal force to retired judges who continue to perform judicial or public service.
It was argued on behalf of Zuma and Mbeki that they did not need to obtain prior consent to haul her before court, as she is retired and heading a commission at this stage and not performing judicial functions.
Acting Deputy Judge President Thifhelimbilu Mudau, who wrote the consenting judgment, however, said Justice Khampepe, although a retired judge, continues to perform public service as chairperson of the commission of inquiry. In doing so, she remains bound by her judicial oath and the ethical standards attached 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 and personal attacks are no less real in the commission context," the judge said.
He added that the president’s own concerns about potential “public criticism of the commission” underscore the real pressures to which a judicial officer in this position is subject. “Consent must be obtained before proceedings are instituted. Once proceedings are launched without consent, they are a nullity from the start and cannot be validated,” the judge said.
zelda.venter@inl.co.za