- Thabo Mbeki and Brigitte Mabandla claim the TRC Cases Commission is trying to force them to testify before the Constitutional Court rules on the challenge involving chairperson Justice Sisi Khampepe.
- They argue that the subpoenas are an abuse of power and are intended to make their court challenge meaningless.
- The pair insist they are willing to testify but only before a commission chaired by someone whose impartiality is not being challenged in court.
Former president Thabo Mbeki and former justice minister Brigitte Mabandla say the TRC Cases Commission is trying to bypass their pending Constitutional Court challenge by forcing them to testify before a chairperson whose impartiality is still under dispute.
In an urgent application before the High Court in Johannesburg, they argue the commission's decision to issue subpoenas is designed to push ahead before the Constitutional Court has decided whether Justice Sisi Khampepe should continue chairing the inquiry.
Mbeki and Mabandla say they have always made it clear they are willing to testify. Their objection is being forced to appear before a commission whose chairperson is at the centre of ongoing litigation.
Dispute over Justice Khampepe's role
The legal dispute began with a recusal application by Mbeki, Mabandla and former president Jacob Zuma earlier this year.
They argued that Justice Khampepe’s previous work with the Truth and Reconciliation Commission Amnesty Committee and the National Prosecuting Authority created a reasonable apprehension of bias.
After Justice Khampepe rejected the recusal application, the matter went on review. While the majority of the Full Court dismissed the review on procedural grounds, a minority found that Justice Khampepe should have recused herself.
Mbeki and Mabandla then approached the Constitutional Court, where the matter is still pending. They say that until the dispute is resolved, the commission should not be forcing them to appear before Justice Khampepe.
Allegations of bad faith
A central claim in their application is that the commission acted in bad faith by issuing subpoenas after becoming fully aware of the Constitutional Court case.
According to Mbeki, the commission knew for months that he and Mabandla would not participate while the recusal dispute was unresolved. Even so, it did not use its coercive powers until now.
They argue that suddenly issuing subpoenas, after appeal proceedings had already begun, suggests an attempt to ensure they testify before the Constitutional Court can hear their challenge.
Mbeki also points out that the commission itself acknowledged in documents requesting a term extension that the outcome of the Constitutional Court proceedings was still uncertain and could affect its work.
The application argues that forcing them to testify now would undermine their legal challenge by making them participate before Justice Khampepe’s role is decided.
Willing to testify
Throughout, Mbeki and Mabandla emphasise that they are not trying to avoid the commission. They say they are prepared to answer questions and participate in the inquiry once the courts have decided whether Justice Khampepe should continue as chairperson.
They argue that subpoenas are unnecessary because they have never refused to testify before a lawfully constituted commission.
They also say the threat of criminal penalties for failing to comply with a subpoena puts pressure on them to participate in proceedings they believe may be found to be flawed.
Seeking urgent intervention
Mbeki and Mabandla want the High Court to suspend the subpoenas and stop the commission from issuing further subpoenas against them until the Constitutional Court and related litigation have been concluded. In the main application, they want the subpoenas declared unlawful, unconstitutional and invalid.
They argue there is no need for their immediate testimony because the Commission's term has already been extended, allowing enough time for the courts to determine the dispute before they are called to give evidence.
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