What’s Happening?
Former presidents Jacob Zuma and Thabo Mbeki are trying to get Judge Sisi Khampepe removed as chair of the Truth and Reconciliation Commission (TRC) inquiry. Their lawyer, Dali Mpofu, argued in the Constitutional Court that if Khampepe stays on the panel, the commission’s findings will be ignored or “dumped.”
Who’s Involved?
- Jacob Zuma & Thabo Mbeki – former presidents seeking to challenge Khampepe’s role.
- Dali Mpofu – lawyer representing Zuma, making the case for her removal.
- Ngwako Maenetje – lawyer speaking for Mbeki, saying his client is ready to face the commission if it is properly constituted.
- Judge Sisi Khampepe – retired judge currently chairing the TRC inquiry.
- Constitutional Court justices – deciding whether the court can hear the case.
The Core Argument
Mpofu told the court that allowing the TRC to continue under Khampepe’s leadership would make its recommendations “nullified, rendered null.” He claims her past roles create a conflict of interest and that the commission’s work must finish by December, or it will be too late.
Why Judge Khampepe’s Past Matters
- In the late 1990s she served on the TRC’s Amnesty Committee, deciding who could be prosecuted or granted amnesty.
- She also held a senior position as deputy national director of the National Prosecuting Authority (NPA).
- Zuma and Mbeki say she never disclosed these roles, raising concerns about bias.
Legal Technicalities: Section 47(1)
The Superior Courts Act says a judge must get the chief justice’s permission before being tried in court. The Constitutional Court majority ruled that this rule applies only to sitting judges, not retired ones like Khampepe. Therefore, the court said it lacked jurisdiction to hear the matter without prior consent from the chief justice.
Court’s Decision So Far
- Majority View – Two justices agreed that section 47(1) does not cover retired judges, so the court cannot decide the case without the chief justice’s approval.
- Minority View – Justice Lebogang Modiba disagreed, arguing the law clearly excludes retired judges, supporting Zuma and Mbeki’s position.
What the Former Presidents Want
- Direct Access to the Constitutional Court – They hope the court will let them appeal the earlier ruling that denied Khampepe’s removal.
- If Denied, a Path to the Supreme Court of Appeal (SCA) – Mpofu warned that going to the SCA would take too long, risk missing the December deadline for the TRC’s work.
Responses from the Other Side
- Maenetje (Mbeki’s lawyer) said his client is not avoiding responsibility. If the court finds the commission properly constituted, Mbeki is ready to testify. He added that a summons already requires Mbeki to give evidence by September, and he could ask for an extension if needed.
- Khampepe’s defenders argue she never hid her past roles and that any perceived bias is unfounded. They stress the importance of letting the inquiry continue without interruption.
Possible Outcomes
- If Direct Access Is Granted – The court could send the matter back to the TRC for Khampepe to reconsider her refusal to step down, or refer it to the SCA for a final ruling.
- If Direct Access Is Denied – The former presidents would need to pursue the SCA route, which Mpofu says would likely miss the commission’s deadline, jeopardizing the entire process.
Conclusion
The battle over Judge Sisi Khampepe’s place on the TRC inquiry touches on questions of fairness, legal procedure, and the need for timely justice. While the Constitutional Court has so far said it cannot intervene without the chief justice’s approval, the former presidents keep pushing for a swift resolution. Whether the commission moves forward under its current chair or faces a change in leadership will shape how South Africa remembers this chapter of its history. The coming weeks will decide if the TRC’s work can be completed on schedule—or if it will be delayed, leaving many questions unanswered.
