Former president Thabo Mbeki has launched urgent court proceedings to halt a summons forcing him to testify before the TRC inquiry.
Image: Bheki Radebe / Independent Media
Faced with a subpoena to appear before the Truth and Reconciliation Commission (TRC) this week, former president Thabo Mbeki has accused the commission of trying to rush his evidence before the Constitutional Court can rule on his challenge for the chairperson to recuse herself.
While Mbeki’s legal bid for retired Judge Sisi Khampepe to recuse herself from the TRC inquiry will be heard by the apex court on June 29, the TRC commission on May 14 issued summons to Mbeki and former justice minister Bridgette Mabandla to give evidence, on Wednesday and Thursday respectively.
The pair, however, now approached the Gauteng High Court, Johannesburg for an urgent order suspending the summons pending the outcome of the Constitutional Court challenge, as well as a similar challenge before the Supreme Court of Appeal.
Mbeki and Mabandla will also ask the court at a later stage to declare the summons unlawful, unconstitutional, invalid and of no force and to set it aside.
Mbeki, in an affidavit, made it clear that he is not objecting to giving evidence before the TRC inquiry. He, however, objects to doing so without the final verdict regarding Judge Khampepe being the chairperson. “Once we have given evidence before the Commission in its current constitution, that evidence cannot be recalled or expunged,” he said.
He said by forcing him and Mabandla to now testify by means of a summons, it will lend legitimacy to proceedings that may ultimately be declared unlawful. “The summons was issued with the sole purpose of securing our attendance at the commission, to appear before the chairperson, with full knowledge of our apprehension of bias against her and thereby undermining the pending appeal proceedings and our constitutional rights to pursue the chairperson’s recusal".
Mbeki added that they have a right to appear before an impartial commission and to access a court to challenge the recusal ruling. He pointed out that a summons to appear before a commission was potentially invasive and destructive consequences and simply ignoring it, could lead to criminal charges.
Mbeki said while the commission was issued with a letter that they would not participate pending the final determination of the appeal, he and Mabandla were instead suddenly slapped with a summons to testify.
“The commission’s attempts to enforce compliance are an abuse. The commission knows that the chairperson’s sitting may be declared unlawful,” he said. He pointed out that if Judge Khampepe is disqualified, then the commission (as presently constituted) has no power to issue the summons. “It would be cold comfort to suggest that we should appear as compelled by the summons and ask the chairperson to recuse herself. She has already refused to recuse herself….”
Mbeki also pointed to the fact that the commission started oral hearings in February and since then, it had not used its “coercive powers” to compel him and Mabandla to appear before it. “All of a sudden, after setting out the commission's intended plans for May, an about-turn was employed and the most drastic powers were exercised against us in circumstances where we had always maintained that we are willing to appear before a chairperson whose impartiality is without question,” he said.
He questioned the sudden urgency for them to testify and said it appears to be designed to ensure that the commission finalises the investigation before their application is heard by the Constitutional Court. “The commission is seeking to render the appeal proceedings meaningless and to steamroll its way through the investigation irrespective of whether it is acting unlawfully. This constitutes bad faith".
Mbeki added that no harm will be suffered by the commission if the interim interdict is granted, as it has further witnesses to call and to cross-examine. He said if he and Mabandla failed under Part B of their application (to have the summons overturned) and the appeal, they will subject themselves to the commission. But for now, they want to be left alone to pursue the Constitutional Court challenge.
zelda.venter@inl.co.za