The Constitutional Court this week ruled in a highly divided judgment that former presidents Jacob Zuma and Thabo Mbeki failed to prove that a reasonable apprehension of bias exists against retired Justice Sisi Khampepe.

Justice Khampepe is the Chairperson of the judicial commission of inquiry into allegations of interference in the prosecution of Truth and Reconciliation Commission (TRC) cases.

Zuma and Mbeki sought Khampepe’s recusal based on her historical roles. She was a TRC commissioner between 1995 and 2001, a member of the Amnesty Committee, and the Deputy National Director of Public Prosecutions (NPA) between 1998 and 1999. During this period, the TRC referred cases to the NPA and the Human Rights Investigation Unit (HRIU) was established to handle these cases. The former presidents argued that this “institutional proximity” to the historical background of the commission’s mandate creates a reasonable apprehension of bias.

As a preliminary point, the commission claimed that the High Court lacked jurisdiction under Section 47(1) of the Superior Courts Act, as Zuma and Mbeki had not obtained prior consent from the Chief Justice to sue a judge.

However, the Constitutional Court unanimously found that Section 47(1) only applies to active judges in the composition of a High Court. Since Khampepe is retired and a commission of inquiry is not a court, this protection did not apply to her.

On the merits of the recusal itself, the court was sharply divided with three separate judgments. The first judgment by Justice L. Theron (with three other judges concurring) was in favour of the review. She found that the historical link was material and that Khampepe would be in a position to make findings against her own former organization.

However, the majority (in the second judgment by Acting Justice L. Nuku and supported by Justice O. Rogers’ separate judgment) dismissed the application. The majority ruled that Zuma and Mbeki’s claims were merely generalised allegations about her institutional association and failed to provide factual evidence that she would not apply her mind in an impartial manner. The application was therefore dismissed.

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