The Constitutional Court will today hear arguments in former Presidents Thabo Mbeki and Jacob Zuma’s legal bid to have former Justice Sisi Khampepe recuse herself from the TRC inquiry... and it will deliver judgment in the rand-fixing saga tomorrow.

The former Presidents filed an application for leave to appeal against the earlier High Court judgment in which they lost their legal bid to have her removed.

IoL reports that the court said it did not have the jurisdiction to decide over the application for the recusal of Khampepe. In a majority judgment consented to by two judges, the court upheld a preliminary argument by the Khampepe Commission that as Justice Khampepe is a judge, although retired, Zuma and Mbeki should have obtained prior permission to bring her before the court.

However, both said this was an error in law.

They hold that the majority judgment erred by not dealing with the merits of the matter.

According to them, a court which decides a case on a preliminary point – as in this case – ought to also simultaneously deal with the merits so as to avoid the spectre of piecemeal litigation and appeals.

The legal issue under the spotlight will be whether section 47(1) of the Superior Court Act applies to review proceedings relating to the refusal of a judge chairing a commission of inquiry, to recuse herself.

The former Presidents, who had both been summoned to appear before the Khampepe Commission, in December applied for her recusal.

They argued a reasonable apprehension of bias against her chairing the commission, based on her history. They pointed out that Khampepe became a member of the TRC’s Amnesty Committee in the late 1990s. 

IoL reports that they also objected to the fact that she earlier performed duties as the Deputy NDPP. They argued that her failure to disclose the full extent of her role as deputy years ago in the NPA as well as the role she played earlier during TRC hearings creates a reasonable apprehension of bias.

In January, Khampepe refused to recuse herself, with the two former Presidents subsequently taking her decision on review.

They lost that bid on a technical point as the High Court maintained that it cannot hear the application as Justice Khampepe remains a judge, whether she is retired or not, and Mbeki and Zuma should have obtained permission from the Chief Justice before they could institute civil proceedings against her.

Full IoL report