- Zuma and Mbeki sought the recusal of the TRC cases commission chair, alleging past institutional roles and earlier judgments created bias.
- Justice Sisi Khampepe ruled the claims were speculative, unsupported by evidence and legally insufficient to justify removal.
- She also found both applications were brought too late and noted Zuma’s intention to pursue the matter before the Judicial Service Commission.
Families who have waited decades for accountability in long-stalled apartheid era prosecutions received clarity this week after Justice Sisi Khampepe refused to step aside as chair of the inquiry investigating interference in Truth and Reconciliation Commission cases.
In a detailed written ruling, Justice Khampepe dismissed applications by former presidents Jacob Zuma and Thabo Mbeki to have her recused, concluding that the allegations of bias were not grounded in fact and that the timing of the applications threatened to derail the commission’s already delayed work.
The decision means the investigation into whether prosecutions were deliberately blocked or frustrated will proceed without a change in leadership. For the group of families and other victims’ relatives, many of whom have spent years asking why certain apartheid era crimes never reached court, the ruling removes yet another procedural hurdle in a process already marked by long delays.
At the centre of the dispute was the attempted recusal of the TRC cases commission chair, with both former presidents arguing that Justice Khampepe’s past public service created either actual bias or the appearance of bias. What followed was a close examination of the legal test for recusal and whether their claims could meet it.
Legal test for bias not satisfied
Addressing the law first, Justice Khampepe reminded the parties that bias cannot be inferred from suspicion or political disagreement. The test, she said, is objective and asks whether a reasonable and informed person would believe the decision maker cannot bring an impartial mind to the matter. Allegations must therefore be rooted in evidence, she said.
She wrote that claims of bias “must be substantiated by a proper factual basis” and “must not be based on mere speculation and conjecture.”
Both applicants relied heavily on her earlier roles on the TRC Amnesty Committee and as a Deputy National Director of Public Prosecutions more than two decades ago. Justice Khampepe held that those historical positions, without a clear and direct link to the current investigation, could not justify recusal.
The Commission’s mandate focuses on alleged interference with investigations and prosecutions from 2003 onwards, long after she had left those institutions.
“There is thus a 2003 temporal boundary over the work of this Commission,” she explained, meaning her prior roles fall outside the period now under scrutiny. Without what she called a logical connection between past service and present duties, the apprehension of bias could not be reasonable.
Zuma’s allegations and JSC threat addressed
Zuma also pointed to previous Constitutional Court judgments against him and alleged personal hostility. Justice Khampepe rejected this argument, noting that judges frequently preside over multiple matters involving the same litigants without that alone indicating prejudice.
“Judges often hear different matters relating to the same applicant without that providing a justifiable basis for recusal,” she wrote.
She described parts of his application as “intemperate, rude and disparaging accusations” that did not amount to evidence. Claims of secret communications with the Commission’s chief evidence leader were similarly dismissed because no proof was produced. In the absence of facts, she found there was “no factual basis upon which an objective conclusion could be drawn about bias.”
The ruling also records that Zuma signalled he might escalate the dispute beyond the Commission. During the argument, his legal team indicated that he could approach the Judicial Service Commission or the courts if the recusal failed.
Justice Khampepe treated this as a strategic move rather than a legal ground, noting that external complaints do not determine whether bias exists within the proceedings themselves.
Delay and impact on victims weigh heavily
Even if the allegations had been stronger, Justice Khampepe held that both applications would still fail because they were brought too late. The former presidents had known about her appointment and background since the Commission’s establishment, yet only raised objections months later after hearings were already scheduled.
Recusal challenges, she emphasised, must be made promptly to protect the administration of justice and to prevent disruption to those awaiting outcomes. The delay had real consequences. Hearings were postponed, and families seeking answers were forced to wait again.
“These recusal applications have already had the effect of delaying justice and closure to the complainants,” Justice Khampepe wrote.
For a Commission already operating on an extended deadline, further interruptions would undermine both public confidence and the rights of those still searching for accountability.
Commission to proceed without interruption
In closing, Justice Khampepe stressed that the broader public interest demanded continuity. Changing leadership midstream would stall the inquiry and prolong uncertainty for victims and witnesses.
“The Rule of Law, the principle of legality and the proper administration of Justice dictate that I must ensure that this Commission continues and completes its mandate,” she said.
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