Legal reps want Adv Semenya to recuse himself in TRC inquiry

Legal representatives in the Truth and Reconciliation Commission (TRC) of Inquiry want evidence leader Adv Ishmael Semenya to recuse himself.

The commission has been adjourned until November 26 to give legal representatives for the National Prosecuting Authority (NPA) a chance to make a formal application for the recusal of Semenya.

The NPA’s Adv Makhosa Gwala said the bid to have Semenya recused stems partly from his involvement in the NPA’s 2008 policy — currently under legal challenge — which determined how to handle apartheid-era and other conflict-related offences.

“Now, you’ve got our colleague, Adv Semenya, having advised on that policy and having given opinions on that policy.

“It then appears to us, as the NPA, that it is inappropriate that he should sit as the prosecutor. Ours goes so far as to say, ‘You actually played a role in advising us on this policy, which policy, to a greater extent, is the reason we are here today’.

“So you could not advise on the policy itself, and having advised on the policy, then come and sit when the policy is scrutinised. We find that you end up in a situation where you are either defending the policy or perhaps not defending the policy, but we are saying it is inappropriate that he should sit,” Gwala said.

Commission spokesperson Lionel Anderdoff said the commission was aware of Semenya’s role in the prosecution policy but did not think it would be a problem.

“There has been no recusal application tabled this morning, but some legal representatives raised it on a different matter and those were the objections. Unfortunately, we do consider this an unfortunate delay, but this is in the best interest and until we see what they are arguing and what certain departments and entities are saying, then we will know how to deal with it. This issue was flagged; we are aware of it, but the commissioners at the time did not think that it would be a problem,” he said.

We find that you end up in a situation where you are either defending the policy or perhaps not defending the policy, but we are saying it is inappropriate that he should sit.

—  NPA’s Adv Makhosa Gwala

The commission is looking into more than 3,000 cases that were deferred to the NPA for investigation.

The department of justice and constitutional development’s Adv Kgomotso Moroka said they made an objection but not a recusal application.

“The ruling stated that, regarding the issues concerning whether Semenya was conflicted, another evidence leader would take charge of those witnesses. We have expressed our agreement with this ruling in our objection. Therefore, at this moment, we do not have any application pending before you. I understand that your response indicated that a substantive application must be submitted. We have not submitted that application,” she said.

Moroka said they were also not privy to information regarding Semenya assisting in leading evidence of eight witnesses with another evidence leader, Howard Vanni.

“What our objection says is that we learnt at the second hearing that Mr Semenya had made a private arrangement that we were not privy to about the leading of eight witnesses by Mr Vanni.

“We object to that because, one, we were not told.

“Two, we were not invited to comment on that arrangement. Three, the chairperson herself had already made an order as to how witnesses were going to be led. That is our objection. It is a process issue and nothing else. We then gave an indication that it may be that we are going to move an application for recusal,” she explained.

Sowetan