The high court in Johannesburg has dismissed an application by former presidents Jacob Zuma and Thabo Mbeki to remove retired justice Sisi Khampepe as chair of a commission of inquiry.
The commission is probing whether political influence played a role in the failure to investigate and prosecute apartheid-era crimes.
Zuma and Mbeki wanted the court to overturn Khampepe’s decision not to recuse herself as chair of the commission probing the failure of the National Prosecuting Authority (NPA) to prosecute Truth and Reconciliation Commission (TRC) cases.
The court bid questioning Khampepe’s impartiality was based on Khampepe’s membership 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,” read the judgment, penned by judge Thifhelimbilu Mudau and delivered on Monday.
The former presidents’ failure to obtain permission before litigating against Khampepe led to the case being dismissed without consideration of the merits.
“The applicants’ noncompliance with section 47 of the Superior Courts Act 10 of 2013 renders these proceedings a nullity,” Mudau said.
Section 47 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, arguing the section does not apply to retired judges or in litigation challenging commission decisions.
“Justice Khampepe, as a retired judge of the Constitutional Court serving as chair of a commission of inquiry, is a judge for purposes of section 47. The applicants were required to obtain the chief justice’s consent before instituting these review proceedings. They failed to do so. This failure is fatal,” said Mudau.
The judgment by Mudau was supported by judge Selby Baqwa, but judge Lebogang Modiba, of the full bench, had issued a dissenting judgment.
Mudau’s ruling is crucial in the debate on whether judges acting as chairs of commissions enjoy section 47’s protection. The debate was in focus in mineral & petroleum resources minister Gwede Mantashe’s case against former chief justice Raymond Zondo.
Mudau ruled section 47(1) applies regardless of whether the matter relates to a judge’s judicial functions and activities or his private affairs.
“This requirement also applies with equal force to retired judges as it does to other judges in active service. It follows that the application must be dismissed on this basis alone. It is not necessary for the court to consider the other grounds of review raised by the applicants,” he said.
That two former presidents joined forces, with Zuma attacking a retired judge of the Constitutional Court, underscores the need for the protective mechanism of section 47, Mudau said.
“If such powerful litigants can take legal action against a judge without prior consent, the potential for abuse is manifest.”
Mudau ruled in favour of arguments made by Adv Tembeka Ngcukaitobi that the case was bound to be dismissed on procedural grounds.
Zuma’s attempt to seek punitive costs against Khampepe was also refused.
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 position.
“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.”
The Zuma Foundation, in a statement, said it disagreed with the judgment and was considering the next legal step.
• This article was updated with more information on March 30 2026.
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