Failure to obtain permission before litigating against a retired judge cannot block access to court, former president Thabo Mbeki argues in a Constitutional Court bid to have retired justice Sisi Khampepe removed as chair of a commission.
Mbeki and his successor Jacob Zuma this week initiated an urgent application for direct access to the top court to overturn the high court in Johannesburg’s dismissal of the application to remove Khampepe.
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 former presidents’ failure to obtain permission before litigating against Khampepe led to the case being dismissed without consideration of the merits, in a majority judgment penned by judge Thifhelimbilu Mudau last month.
The appeal provides a crucial moment for the highest court to provide clarity whether retired judges chairing judicial commissions of inquiries enjoy the legal shield same as sitting judges.
The Gauteng high court divisions have two conflicting judgments on the matter. What the court decides will be significant in laying the law on litigations against judges chairing commissions, as the country continues to have more commissions.
The former presidents did not seek chief justice Mandisa Maya’s permission, arguing the section does not apply to retired judges or in litigation challenging commission decisions.
The law requires litigants in civil matters against a judge to first apply to the head of a court before initiating a case.
While Mbeki remains adamant to the argument that there was no need to seek permission, he argues that even if the high court found against him the flaw in procedure was not a ground for the court not to decide on merits of the case.
“Even if section 47 applies to these proceedings, the majority erred in holding that non-compliance renders the proceedings void ab initio and that the court lacks jurisdiction to entertain them,” Mbeki argues.
“The absence of consent does not deprive the court of that jurisdiction.”
He contends the court could have held that non-compliance is not jurisdictional and that, in an appropriate case, the litigation should be stayed to allow regularisation rather than dismissed as void.
“The majority’s conclusion that the high court could not consider urgency or the merits of the review was a direct consequence of its jurisdictional framing.
“If that framing is wrong the refusal to reach the other issues becomes derivative error that falls away with the primary error.”
Mbeki argues the dispute over section 47 raises questions over the right of access to courts enshrined in the constitution.
“My case before this court is that a proper consideration of constitutional factors, such as the right of access to courts enshrined in section 34 of the constitution and the section 39 (2) obligation to interpret legislation in a manner that promotes the spirit, purport and objects of the Bill of Rights could reasonably lead to a different outcome. The majority’s interpretation fails that obligation.”
In the appeal, he wants the top court to issue an order directing Khampepe be removed as chair of the commission or directing President Cyril Ramaphosa to terminate her appointment with immediate effect.
The appeal is urgent as Mbeki has a deadline until end of April to file his statement to the commission. The commission has a deadline of May 29 to conclude its work.
The court is yet to decide on the matter.
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