Failure to seek permission over Khampepe scuppers Mbeki and Zuma’s bid, court told

The failure by former presidents Thabo Mbeki and Jacob Zuma to obtain permission before litigating against retired justice Sisi Khampepe leaves their case “dead in the water”, advocate Tembeka Ngcukaitobi told the high court in Johannesburg on Tuesday.

Ngcukaitobi, representing the commission, was arguing in the case in which the former presidents want Khampepe to be removed as chair of the commission probing whether there was political influence in the failure of investigations and the prosecution of apartheid-era crimes.

“These proceedings are a nullity,” Ngcukaitobi told the court. The case is bound to be dismissed on procedural grounds, he contended.

Ngcukaitobi argued the court could not consider the application because 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.

“If I am right the section applies. It is common cause the section has not been complied with, and the consequence of that fact is that … you have no proceedings in front of you,” Ngcukaitobi argued.

“You have to decide whether you have a valid case. If you do not, then you have to strike it [from the roll] or dismiss it.”

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.

How the full bench decides on the applicability of the section will be essential, as the case could be dismissed on procedural grounds. The full bench’s ruling on the section will also provide clarity on questions of whether the section applies to retired judges or judges when presiding over commissions.

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.”

Zuma and Mbeki want 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 & Reconciliation Commission (TRC) cases.

The court bid questioning Khampepe’s impartiality, in which Zuma is supported by former president Thabo Mbeki, is pinned on the fact that Khampepe was a member of the TRC and its amnesty committee, appointed by Nelson Mandela in 1995, and served as the deputy national director of public prosecutions from September 1998 to December 1999.

Ngcukaitobi said the section is vital for Khampepe in the face of Zuma’s arguments seeking personal costs against her conduct in commission proceedings.

The section has been a point of debate in the case due to two contradicting high court judgments on the matter.

Judge Fiona Dippenaar of the high court in Johannesburg found section 47 applied when judges chair a commission, saying they are performing a judicial function.

Pretoria high court judge Graham Moshoana in the case of former SAA Technical (SAAT) procurement head Nontsasa Memela challenging the state capture report, found the section did not shield judges from litigation when serving as commission chairs.

The applicants have argued the full bench, consisting of judges Thifhelimbilu Mudau, Selby Baqwa and Lebogang Modiba, to adopt Moshoana’s ruling.

In addressing arguments that Khampepe had a legal obligation to disclose her involvement in the NPA and TRC amnesty committee, Ngcukaitobi said Khampepe answered the allegations in interlocutory application judgments and effectively stated that she had been involved in the TRC committee and NPA.

Furthermore, Ngcukaitobi argued that her prior roles had nothing to do with the commission’s work in probing whether there had been political interference. As her prior associations had nothing to do with the scope of the investigation, the recusal applications should be dismissed.

“This application is an attack against justice Khampepe because of the role she played in relation to Mr Zuma that led to his incarceration,” he said.

“It is truly chilling that you can have a litigant come to court to character assassinate because of a judgment that was delivered.”

Zuma’s legal representative, Dali Mpofu, pleaded for the court to deliver the judgment as soon as possible because the work of the commission is continuing.

Mpofu said the application is not meant to delay justice for the families of murdered political activists but rather to stopping hearings that could later be “found flawed”.

The court has reserved judgment after a two-day hearing.