Former presidents Mbeki and Zuma take the fight to remove Justice Sisi Khampepe from the TRC hearing to the ConCourt.
Image: File
Former presidents Jacob Zuma and Thabo Mbeki will take their legal challenge for Justice Sisi Khampepe to recuse herself from the TRC inquiry to the Constitutional Court.
They filed an application for leave to appeal against last month’s judgment in which they lost their legal bid to have her removed. The first prize for Mbeki and Zuma is for the Constitutional Court to hear the appeal and they petitioned the apex court in this regard. They simultaneously filed an application for leave to appeal with the Gauteng High Court, Johannesburg.
In the event of the Constitutional Court refusing to hear their application, the former presidents hope to obtain leave to appeal before the Supreme Court of Appeal. They made it clear that this application is conditional in the event that the Constitutional Court did not entertain their petition. The high court recently said it did not have the jurisdiction to decide over the application for the recusal of Justice Khampepe 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 bring her before the court. But both former presidents said this was an error in law. They also argue that the judgment was incomplete, as only the majority judgment was issued, with the dissent.
“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 and the proper administration thereof,” they said in court papers.
They further hold that the majority judgment erred by not dealing with the merits of the matter. According to them, a court which decides a case on a preliminary point - as in this case - ought properly to also simultaneously deal with the merits so as to avoid the spectre of piecemeal litigation and appeals.
“Having seemingly accepted this principle during the hearing, the majority judgment went on to breach and deviate from it without offering any explanation,” they argue. According to them, the breach of the rule also has the consequence that the SCA or the Constitutional Court will be confronted with the necessity of dealing with the merits.
“This is a fundamental failure of justice, breach of the rule of law and the right to have a dispute resolved by the application of the law as enshrined in section 34 of the Constitution,” they argue. The pair also wants the ConCourt or the SCA to take another look at the reasoning of the high court that special leave must be obtained before a judge can be hauled before court. According to them, the judges erred in assuming that all types of services contemplated in the Judges’ Conditions of Employment Act are judicial functions or “service as a judge”.
“Commissioner Khampepe in chairing the commission of inquiry is not providing a service as a judge or performing judicial functions,” they state in their application. 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.
zelda.venter@inl.co.za