The bid by former presidents Thabo Mbeki and Jacob Zuma to have retired justice Sisi Khampepe removed as chair of a commission is “effectively delaying” their accountability on allegations of political interference, commission evidence leader Ishmael Semenya argues in court papers.
Mbeki and Zuma have been told to file responses to allegations that the government stalled prosecutions arising from evidence given at the Truth and Reconciliation Commission (TRC).
The two men have initiated an urgent application for direct access to the Constitutional Court to overturn the high court’s dismissal of their application for Khampepe’s removal.
Zuma and Mbeki had sought to overturn Khampepe’s decision not to recuse herself as chair of the commission investigating the failure of the National Prosecuting Authority (NPA) to prosecute TRC cases.
Should the apex court agree to consider their application, the issue that arises is whether a review of a recusal application requires heads of court consent.
The law requires litigants in civil matters against a judge to first apply to the head of a court before initiating a case.
The former presidents’ case was dismissed because they did not obtain permission before litigating against Khampepe last month. The case was not decided on its merits but dismissed on procedural grounds.
Judge Lebogang Modiba, in a dissenting judgment, found that a review of a recusal ruling does not fall within the category of civil proceedings regulated by section 47(1) of the Superior Courts Act, which requires litigants in civil proceedings to seek consent before litigation.
The urgent application by Mbeki and Zuma offers the highest court an opportunity to provide clarity on whether retired judges chairing judicial commissions of inquiry enjoy the same legal shield as sitting judges.
Semenya, in a recently filed affidavit to the top court, describes the application as a delay to the proceedings in which the former presidents must respond to allegations that the executive during their tenures as head of state interfered in the prosecution of apartheid-era crimes.
“Until now, the applicants have not appeared before the TRC to provide their account of events. This application has effectively resulted in the applicants delaying their appearance before the TRC. Consequently, the application is an abuse because it prolongs and delays the appearance of the applicants to account before the TRC,” Semenya argues.
The NPA has failed to prosecute numerous apartheid-era crimes and has scored only a few convictions.
The commission has a deadline of July 31, and neither Mbeki nor Zuma has tendered statements responding to the allegations before the commission.
This application has effectively resulted in the applicants delaying their appearance before the TRC. Consequently, the application is an abuse because it prolongs and delays the appearance of the applicants to account before the TRC.
— Ishmael Semenya, commission evidence leader
Semenya contends the high court was correct in finding the application a nullity due to failure to obtain consent.
“The point was correctly decided and, in the result, these proceedings before the Constitutional Court, too, are a nullity,” he says.
“The matter ends here, then, and the present applications stand to be dismissed on this basis alone. But even if this honourable court were minded to consider the applicants’ petition, the extraordinary intervention of the republic’s apex court (and the bypassing of the Supreme Court of Appeal) is entirely unjustified.”
Semenya maintains the existence of the dissenting judgment does not establish prospects of success on the merits or legal ground for the former presidents to be granted direct access to the top court without having litigated the matter in the Supreme Court of Appeal (SCA).
“There exist no exceptional circumstances justifying the intervention of the Constitutional Court as an appellate court to the high court and a court of first instance on the merits of the applicants’ review proceedings,” he says.
“There is no urgency in the application which would justify skipping the SCA. The fact that the commission’s term of office is likely to end before they have the right to approach this court is neither here nor there.”
The applicants elected not to follow the mandatory procedure in section 47(1) of the Act, he says, adding that their belated and “begrudging attempts to submit the application to the chief justice should be rejected as lacking in sincerity and merit”.
While Mbeki is adamant there is no need to seek permission, he argues that even if the high court were to find against him, the flaw in procedure is not a ground for the court not to decide on the merits of the case.
Semenya contends that if the former presidents believe the consent rule infringes their rights in the Bill of Rights, “they are free to bring a constitutional challenge”.
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 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. She also served as the deputy national director of public prosecutions from September 1998 to December 1999.
