- The Constitutional Court has found that Section 47 of the Superior Courts Act does not protect retired judges who chair commissions of inquiry.
- Jacob Zuma and Thabo Mbeki were unable to show a reasonable apprehension of bias against Justice Sisi Khampepe.
- The judgment sets aside the High Court in Johannesburg’s earlier ruling on jurisdiction and clarifies the law on taking proceedings against retired judges.
The Constitutional Court has found that retired judges who chair commissions of inquiry are not covered by Section 47 of the Superior Courts Act. This means litigants do not need the Chief Justice’s consent before bringing proceedings against them.
This unanimous ruling followed an attempt by former presidents Jacob Zuma and Thabo Mbeki to have Justice Sisi Khampepe removed as chair of the judicial commission looking into allegations that efforts were made to halt the investigation and prosecution of Truth and Reconciliation Commission cases.
The court agreed that Zuma and Mbeki were entitled to bring the review, but it dismissed their arguments about Justice Khampepe’s impartiality.
High Court in Johannesburg got it wrong
The dispute focused on Section 47 of the Superior Courts Act, which requires consent before civil proceedings can be brought against a judge of a superior court.
A full bench of the High Court in Johannesburg had dismissed Zuma and Mbeki’s review without considering its merits. The court found that Justice Khampepe could not be sued without the Chief Justice’s permission because she is a retired Constitutional Court justice.
Writing for the majority, Justice Leona Theron said that interpretation was incorrect because Justice Khampepe is no longer part of a superior court. The judgment said that Section 47 is there to protect the administration and functioning of the courts by regulating proceedings against serving judges, not retired judges doing public work.
Justice Theron wrote, “A fundamental tenet of the rule of law is that nobody is above the law. Extending the provision to retired judges would create an unnecessary procedural hurdle for litigants and foster the perception that judges enjoy lifelong legal privileges.”
Why Zuma and Mbeki wanted Justice Khampepe removed
The former presidents claimed that Justice Khampepe’s earlier roles as a commissioner on the TRC Amnesty Committee and later as Deputy National Director of Public Prosecutions created a reasonable apprehension of bias.
They said that her institutional involvement in the TRC and the National Prosecuting Authority placed her too close to the very prosecutorial history the commission is meant to investigate. They also claimed that her handling of matters involving the commission’s chief evidence leader, Advocate Ishmael Semenya, showed partiality. The Constitutional Court rejected both arguments.
Justice Theron said the applicants did not show the necessary logical connection between Justice Khampepe’s earlier roles and the commission’s mandate, which is focused on alleged interference in investigations and prosecutions from 2003 onwards. The court also found no evidence of actual bias.
She held that “maintaining public confidence in such a process requires scrupulous institutional impartiality” but said the evidence before the court did not justify Justice Khampepe’s recusal.
Inquiry continues
The commission was set up by President Cyril Ramaphosa after a court case brought by the Calata Group, which represents families looking for accountability for apartheid-era crimes that were never prosecuted.
Its mandate is to investigate whether political or institutional actors interfered with the investigation and prosecution of TRC cases, to identify those responsible, and to recommend further action where necessary.
The Constitutional Court replaced the High Court’s jurisdiction ruling with an order dismissing the preliminary objection. It also dismissed the review application and ordered each party to pay its own costs, except for the National Prosecuting Authority, whose late condonation application was refused with costs.
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