The high court in Johannesburg has dismissed an application by former presidents Jacob Zuma and Thabo Mbeki to have retired justice Sisi Khampepe removed as the chair of the commission probing whether there was political influence in the failure of investigations and the prosecution of apartheid-era crimes.
Zuma and Mbeki wanted the court to overturn Khampepe’s decision not to recuse herself as the chair of the commission probing whether there was political influence in the failure of the National Prosecuting Authority (NPA) to prosecute Truth and Reconciliation Commission (TRC) cases.
The court bid questioning Khampepe’s impartiality was pinned on the fact that Khampepe was a member of the TRC and its amnesty committee, appointed by the late president Nelson Mandela in 1995, and served as the deputy national director of public prosecutions from September 1998 to December 1999.
“The application is dismissed,” a judgment penned by judge Thifhelimbilu Mudau delivered on Monday read.
Zuma’s attempt to have punitive costs against Khampepe was also refused.
The former presidents’ failure to obtain permission before litigating against Khampepe led to the case being dismissed.
“The applicants’ non-compliance with section 47 of the Superior Courts Act 10 of 2013 renders these proceedings a nullity,” Mudau said.
Mudau ruled in favour of arguments made by advocate Tembeka Ngcukaitobi that the case was bound to be dismissed on procedural grounds.
Zuma and Mbeki did not follow section 47 of the Superior Courts Act, which requires litigants against a judge to first apply to the head of a court before initiating a case.
The applicants did not seek chief justice Mandisa Maya’s permission in the case, arguing the section does not apply to retired judges or in litigation challenging commission decisions.
Ngcukaitobi argued the section covers retired judges because its main aim is protecting judiciary independence, adding that if it does not cover retired judges, it would leave them vulnerable to litigants.
“Justice Khampepe is attacked in relation to her judicial role, and she is also attacked in relation to the performance of a public function. Those two attacks underscore the significance of the protective nature of section 47,” he contended.
He argued the section is the only provision protecting Khampepe after President Cyril Ramaphosa, as the creator of the commission, did not oppose the application, leaving the retired judge in a vulnerable situation.
“We are dealing with someone who has been called by her own president to perform a public service defined as one of the duties of a judge. The fact of the retirement does not denude the judge of the protective mechanism.”
Business Day
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