The bid by former Pres­id­ents Thabo Mbeki and Jacob Zuma to have retired justice Sisi Khampepe removed as chair of a com­mis­sion is ‘effect­ively delay­ing’ their account­ab­il­ity on alleg­a­tions of polit­ical inter­fer­ence, com­mis­sion evid­ence leader Ish­mael Semenya argues in court papers.

Business Day reports that Mbeki and Zuma have been told to file responses to alleg­a­tions that the gov­ern­ment stalled pro­sec­u­tions arising from evid­ence given at the TRC.

The two men have ini­ti­ated an urgent applic­a­tion for dir­ect access to the Con­sti­tu­tional Court to over­turn the High Court’s dis­missal of their applic­a­tion for Khampepe’s removal.

Zuma and Mbeki had sought to over­turn Khampepe’s decision not to recuse her­self as chair of the com­mis­sion invest­ig­at­ing the fail­ure of the NPA to pro­sec­ute TRC cases.

Should the apex court agree to con­sider their applic­a­tion, the issue that arises is whether a review of a recusal applic­a­tion requires heads of court con­sent.

The former Pres­id­ents’ case was dis­missed because they did not obtain per­mis­sion before lit­ig­at­ing against Khampepe last month.

The case was not decided on its mer­its but dis­missed on pro­ced­ural grounds.

The urgent applic­a­tion offers the highest court an oppor­tun­ity to provide clar­ity on whether retired judges chair­ing judi­cial com­mis­sions of inquiry enjoy the same legal shield as sit­ting judges.

Semenya, in a recently filed affi­davit to the top court, describes the applic­a­tion as a delay to the pro­ceed­ings in which the former Pres­id­ents must respond to alleg­a­tions that the exec­ut­ive dur­ing their ten­ures as head of state interfered in the pro­sec­u­tion of apartheid-era crimes.

Full Business Day report