Constitutional Court splits three ways as Zuma and Mbeki bid to remove Khampepe fails

The Constitutional Court has dismissed the bid by former presidents Jacob Zuma and Thabo Mbeki to set aside the refusal of Commissioner Sisi Khampepe to recuse herself from the Judicial Commission of Inquiry into efforts to stop the investigation or prosecution of Truth and Reconciliation Commission cases.

The court handed down three separate judgments on 31 August 2026 in case CCT 90/26, according to the Constitutional Court’s post-judgment media summary. All judges agreed on one central point: section 47(1) of the Superior Courts Act 10 of 2013 does not protect Khampepe, because she retired from the bench in 2021 and a commission of inquiry is not a court of law. The court was unanimous that the High Court had jurisdiction to hear the review.

Where the judges parted ways was on whether the review should have succeeded. The first judgment, written by Theron J with Mlambo DCJ and Mathopo J and Mhlanta J concurring, would have found a reasonable apprehension of bias and recused Khampepe. The second, written by Nuku AJ with Dambuza J, Kollapen J and Majiedt J concurring, found that the applicants did not properly plead their case and that the facts fell short of establishing bias. Rogers J wrote a third judgment agreeing with the order but not all of the reasoning.

How the case reached the court

Khampepe was appointed by President Cyril Ramaphosa in May 2025 to chair the inquiry. She served as a justice of the Constitutional Court from 2009 until her retirement in 2021, and before that as a commissioner of the TRC between 1995 and 2001, a member of its Amnesty Committee, and Deputy National Director of Public Prosecutions between 1998 and 1999.

After receiving notices to participate in the commission’s proceedings, Zuma and Mbeki applied for her recusal. They argued that her prior institutional roles created a reasonable apprehension of bias. They also alleged procedural irregularities, including that she endorsed a witness-leading arrangement between the commission’s chief evidence leader, Advocate Ishmael Semenya SC, and the lead counsel for the Calata Group, and that she improperly assisted Semenya when his own recusal was sought. The Calata Group refers to families seeking prosecution of apartheid-era crimes involving the torture and killing of their relatives.

Khampepe declined to recuse herself on 30 January 2026. She found no logical connection between her prior roles and the commission’s present mandate, which covers alleged efforts to suppress the TRC cases from 2003 onwards. She drew a temporal boundary between that period and her tenure at the TRC and the NPA, which ended on or before 2001.

The applicants then approached the Gauteng High Court in Johannesburg on an urgent basis. The commission respondents raised a preliminary point that the court lacked jurisdiction under section 47(1), which bars civil proceedings against a judge of a Superior Court without the consent of the head of that court. The applicants had not sought the Chief Justice’s consent. A Full Court majority accepted that point and dismissed the review without considering the merits. A minority disagreed and would have found bias.

What the Constitutional Court decided

The first judgment held that section 47(1) serves three purposes: shielding judges from vexatious litigation, protecting the functioning of the courts, and safeguarding judicial independence. But it affords limited, not infinite, protection. To qualify, a person must form part of the composition of a Superior Court. Khampepe ceased to be a judge upon retirement, and chairing a commission does not bring her within the section because a commission is not a court.

The court also refused the NPA’s application for condonation for the late filing of its explanatory affidavit. President Ramaphosa had filed an affidavit in the High Court saying he did not know of Khampepe’s prior roles at the NPA and the TRC, and would not have appointed her had he known.

On the recusal itself, the first judgment declined to review the decision under the Promotion of Administrative Justice Act because the applicants did not sufficiently plead that it was administrative action. It said commissions exercise public power and are therefore subject to the principle of legality. It found that Khampepe did not act unlawfully by deciding the recusal application alone, because neither rule 11 of the commission’s rules nor the court’s jurisprudence requires recusal applications to be decided collectively. It noted that in the SARFU matter, members of the court decided recusal applications both individually and collectively, and that judges have jurisdiction over applications for their own recusal.

The first judgment then applied rationality as a standard under legality. It reasoned that the commission’s purposes, including uncovering whether efforts were made to stop the TRC cases and restoring public confidence, cannot be served if the chairperson is tainted by a reasonable apprehension of bias. It found the temporal boundary relied on by Khampepe to be artificial, because alleged interference may have been presaged by earlier negotiations, and because the commission had already called witnesses on events predating 2003. It noted that Khampepe was on both the referring and receiving ends of some TRC cases, and that she could make adverse findings against her former organisation and colleagues. It concluded that a reasonable, objective and informed observer would find she might not bring an impartial mind to bear.

The second judgment agreed on jurisdiction and on the refusal of condonation, but disagreed on the outcome. It held that the applicants did not properly plead procedural rationality, and that the facts fell short of establishing a reasonable apprehension of bias. It said the first judgment approached the inquiry from the wrong premise by focusing on Khampepe’s roles rather than assessing, on evidence rather than appearance, whether a nexus had been established. It cited Masuku, which held that the test requires more than mere association with a matter. Generalised averments about positions held at the Amnesty Committee and the NPA, it found, cannot ground recusal. On that basis it dismissed the review.

Rogers J agreed with the order but not all the reasoning. He held that bias should be recognised as an independent ground of review for commissions of inquiry rather than treated as a facet of procedural irrationality. He also disagreed that the case should fail on deficient pleadings, though he agreed bias was not established on what was pleaded.

Why it matters

The ruling settles an important question about who can be sued or reviewed. Retired judges who take on commissions of inquiry can have their decisions tested in court, and the protection of section 47(1) does not follow them out of office. That is significant for every commission of inquiry, and for the public’s ability to challenge how they run.

It also leaves the TRC cases inquiry in place under Khampepe’s chairmanship, with the court declining to remove her. The commission’s work on whether attempts were made to stop the investigation and prosecution of apartheid-era cases continues, and the families grouped as the Calata Group remain parties to it.

The full judgment is published by the Constitutional Court at hdl.handle.net The court’s media summary notes that the explanatory note is provided to assist the media and is not binding on the court or any member of it.