The Dialogue - Mbeki and Zuma’s challenge of Khampepe’s role in TRC inquiry heads to Concourt

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[00:00:00]702.

[00:00:02]Let's walk the talk [music] on 92.7 and 106 FM. It's 27 minutes to 12. Thank you so much for tuning in. This is the Clement Manyathela Show. My name is Clement Manyathela Modise and I'm in for Clem this morning. So, to this conversation now, it's an important case that's about to play out in the Constitutional Court. Former Presidents Thabo Mbeki and Jacob Zuma are headed to the Apex Court challenging retired Constitutional Court Justice Khampepe who chairs the TRC inquiry. So, if you haven't been following the inquiry, it's an inquiry into the reasons why there haven't been prosecutions of apartheid era crimes, particularly those that were sent for prosecution from the TRC to the NPA. Mbeki and Zuma argue that their previous involvement in the TRC and the National Prosecuting Authority creates a reasonable apprehension of bias and that she should recuse herself. But, the Gauteng High Court dismissed her application ruling that they failed to obtain permission from Chief Justice Mogoeng Mogoeng before instituting proceedings against a judge as required by law. For that conversation, we've got Mbekezeli Benjamin from Judges Matter.

[00:01:07]Thank you so much for your time, Mbekezeli.

[00:01:10]Hi. Hi, Khumalo. Thank you very much for having me. Good afternoon. Oh, good morning to you.

[00:01:14]>> Yes.

[00:01:15]>> [laughter] >> So, I want to start with this permission that is required by law for the former presidents to to have this matter in court because not only was this the decision of the judgment made by the High Court, but I'm also aware that when they tried to escalate the matter to the Constitutional Court initially, they did say a response was given that they had failed to get permission from the Chief Justice to do this. How does this work? What's this permission that the former presidents need for this matter?

[00:01:48]Yes. So, the permission that is required in order to sue a judge is in terms of Section 47 of the Superior Courts Act.

[00:01:59]And what section 47 says is that before you initiate any court proceedings, whether they are civil uh summons or it is a a notice of motion, you first need to get um the permission of the head of uh head of court in which that judge is based. So, if you want to initiate uh civil proceedings against the judge of the High Court, you need to get permission from the Judge President.

[00:02:27]For the Supreme Court of Appeal, you need the President of the Supreme Court of Appeal. And for Constitutional Court judges, you need permission from the Chief Justice in order to initiate proceedings against that particular judge. And what the the courts uh have said in different cases that it it includes both sitting judges and also retired judges. Um the the case law also says that it includes judges who are performing functions in court, but also who are do who are performing uh functions like in a commission of inquiry. And the purpose of this section of section 47 is essentially to protect um the judicial process or the the the court functions. Because what would happen is that people would obviously file court cases and because you are unhappy with the outcome of of the court judgment, you then want to sue the judge personally. Um and so, in a way, in order to insulate the judges or immunize the judges from just being sued willy-nilly, there is this uh section 47 process, which is a a gatekeeping uh process. So, that means that um for you, uh before you you you file the court papers, you need to write to the head of court and get that permission. And in that in in your letter to the head of court, you explain what the case is about, what the facts in which it arises, what exactly are you claiming from the court, how is the judge implicated, and and what where does the judge really relate in all of this litigation. And you have to essentially show what they call good cause for you to get that permission.

[00:04:09]So, if it it's a case that is completely unmeritorious, so there are no real legitimate reasons for you to bring the case against the judge, then the permission will be refused. And if the permission is refused, that is essentially the end of your matter. But if there is merit, there is good cause in that case, then the permission will be granted and then you can proceed with the case. So, in this instance, because Justice Dikgang Moseneke was a Constitutional Court judge, then this permission would have to be granted by the Chief Justice, right? And what exactly would the Chief Justice consider?

[00:04:44]So, the yes, the permission would have to be granted by the Chief Justice because uh Justice Dikgang Moseneke was a member of the Constitutional Court.

[00:04:53]And what the Chief Justice considers is a a number of things. For example, what is the basis of the why you're going to court, what what are you claiming from the court, and and exactly how does the the judge how is the judge involved? So, if for example um the or there has actually been previous cases um Nhlapho versus Kumalo, for example. In that case, um the judge had previously been involved in a a business transaction while I think she was a a lawyer, and then one of the people in that business transactions wanted to claim something from the judge. So, it was a I think a debt or something or contractual dispute that arose from a prior business relationship. And so, they then wanted to initiate court proceedings or civil litigation against the judge, and then they had to get permission from the judge president of that court. And the judge president did grant the permission because when they looked at the circumstances, they said, "Look, um here the judge was intimately involved in this business relationship.

[00:06:02]Yes, it arose from prior to her being a judge, but still it is relevant in in these circumstances."

[00:06:08]Now, when it comes to reviewing um a a report or a a a proceeding in a commission, there the courts have also said you need permission because you are citing the judge as a party. So, in the Hlophe case, um they did cite Justice Hlophe as a party, and so they they were required to get that permission.

[00:06:30]Similarly, and in fact, a lot of the cases that involve Section 47 have arisen from the Zondo Commission. So, there was a a case involving a senior staff member from South African Airways.

[00:06:41]In that case, um she was uh instituting a review of the Zondo Commission report, and there she the the court even though it it it it it didn't say that she needed to get permission necessarily, but they said that um it it would have been an issue that have that would have been a arisen. But, the more uh on the point case is the one involving uh Minister Mantashe, who also wanted to review the Zondo Commission report. And the High Court in Joburg said he did need to get that permission.

[00:07:14]And he needed to show exactly why he needed that permission. He was reviewing the the report, and the report involved Justice Zondo as the chairperson, and so he did need to get permission. So, essentially, you need to show what is the connection between what you're claiming and how the judge is involved.

[00:07:33]And that is the good cause that is referred to in the judgment. Well, speaking about the Constitutional Court bid by former presidents Jacob Zuma and Thabo Mbeki, they are tag teaming uh to go to the apex court to challenge uh the role of Justice Sisi Khampepe as the chair of the TRC commission. I want to hear from you. What do you make of the former president's bid and the fact that they are willing to go and escalate the matter all the way to uh the Constitutional Court. I think it's very telling. I'm taking your calls on that.

[00:08:01]And the number to dial is 011-883-0702.

[00:08:03]Send me a WhatsApp on 072-702-1702 or get in touch with me on X. My handle is @Mosa_ Mkhize. We continue the conversation after this. 702 [music] Let's walk the talk on 92.7 and 106 [clears throat] FM.

[00:08:19]Welcome back. This is the Clement Manyathela Show. My name is Mosa Mkhize.

[00:08:21]And of course we are speaking for our dialogue, we're having a conversation on the Constitutional Court bid by former Presidents Thabo Mbeki and Jacob Zuma.

[00:08:30]We're speaking to Mbekezeli Benjamin, who's a researcher at Judges Matter.

[00:08:34]Let's take one of your voice notes.

[00:08:40]Afternoon. I think uh it's very telling.

[00:08:44]That is why they would go to such a length uh of taking uh Justice Khampepe to the Constitutional Court. It means they they know that she was there. She knows the secrets, you know.

[00:08:59]Because today South Africans, majority of South Africans, and the country stagnates and able to go forward because of the deals and the agreements that were made in secrecy, you know, without South Africans knowing.

[00:09:14]We are where we are today because of such decisions or such secrets uh deals and decisions, you know. And when you look at uh who [clears throat] actually is pro-progressing in this country, easily so, it's the politicians, not the ordinary South Africans. Ordinary South Africans are struggling.

[00:09:35]But the politicians, you know, continue to prosper.

[00:09:39]So, it shows that a lot of harm was done to South Africans.

[00:09:45]Hence, today South Africans are expected and forced to survive with the 350.

[00:09:53]They must not even uh are not even given a platform, you know, the conducive platform, you know, to thrive.

[00:10:04]Thank you so much for that, Wiseman.

[00:10:05]Yeah, having read the court papers uh myself and having listened to some of the arguments that they made in the High Court, I know a big part of the argument that they make is the fact that Justice Khampepe had been uh part of the TRC process as well as um part and she'd been working for the NPA at some point and and they insist that she would be marking her own homework because she's going to be critiquing a process that she was actively part of. And the term that they use is reasonable apprehension of bias. And then I said, "Maybe you can help us break down what that means because I was I was trying to understand how does this differ from just saying she is biased?" But they say there's reasonable apprehension of bias.

[00:10:49]Yes. So, in in law, especially when you want a judge or presiding officer to recuse themselves from a case, you have to uh allege two things. You either have to allege actual bias, so there is a clear conflict of interest in that you know that um this person was previously involved in your case and uh in that same case uh they they are now they are now uh presiding over and they had taken a different view uh in a in that same case. So, there is a a conflict of interest or sometimes there is a conflict of interest between um uh that personal versus official interest of that presiding officer. So, let's say um one of the litigating parties is the wife or the husband of of the judge.

[00:11:39]Then there's a clear conflict of interest which gives rise to actual bias. And then there's a second category that is called a reasonable apprehension of bias. And here it it essentially says that you don't necessarily have actual information that shows bias against the uh bias on the part of the presiding officer, but there is substantive information that will give the reasonable person a fear that the judge or the presiding officer will not bring an open mind. They will It it gives you the impression that the judge has already taken a decision.

[00:12:22]And the legal test is that a reasonable person looking at the reasonable information in front of them will then come to a reasonable conclusion that the judicial officer is biased. And so it's it's called the reasonable apprehension of fear. So, a reasonable apprehension of of bias. So, that means based on your reasonable assessment. So, someone who's reasonable, who's not too dramatic or too hyperbolic, looking at the at the information before them, um they will come to a conclusion that the presiding officer is is not is not um open-minded or will be biased on one side or the other. In specific relation to this case, they say that because uh Justice Khampepe was involved in the TRC previously and also at the NPA in the early 2000s, then it gives rise to a reasonable apprehension that she will not keep an open mind to the inquiry.

[00:13:24]She will already take a view on the involvement of the two former president.

[00:13:30]So, that's why they're taking this to court. And something important to add here, Homatse, is that the court in the High Court didn't deal with those substantive questions. They simply dealt with They said, "You didn't get the permission that you need to to get, and so we are dismissing the case." And so, that is that is why they are going to the Constitutional Court. They're asking the Constitutional Court to say, "Look, the court shouldn't have dismissed this case at that early stage. They should have allowed the merits to be dealt with with the question of whether Justice Khampepe is actually biased or it gives her conduct gives rise to a reasonable apprehension of bias." Adv. Benjamin, he's a researcher at Judges Matter.

[00:14:11]Thank you so much for your time. Yeah, you know, we've been watching that closely. The date for that hearing has been Should I believe it's next month?

[00:14:20]It's been scheduled to be heard next month, and it does seem to me like it's been expedited, actually. I didn't think that it would be heard so soon. And of course, now they need to flesh out and almost, you know, dissect all of those issues. And the fact that, you know, Justice Khampepe was part of the TRC process, I think will be explored quite a bit. Of course, the argument the counter argument, if I remember properly, that was made was that she may have been part of the adjudications process and not necessarily the entire process. And in terms of the NPA, she hadn't necessarily been working on TRC cases because you may remember that it was delegated to a unit within the NPA to work on. And the argument that was made was that she may not have necessarily been actively part of that process. So, why then should she be barred from doing this. But, what I find to be even more interesting, you may remember that President Cyril Ramaphosa himself then said that she asked Justice Oh, he, rather. He asked Justice Khampepe through the Justice Minister, Mamoloko Kubayi, that she should recuse herself. So, you know, when this matter went to the High Court, President Cyril Ramaphosa himself wasn't opposing. He said that he would abide by what the what the court finds. And he says that at the time that he appointed her, he wasn't aware of how um how intimately, I should say, uh uh active and part of the TRC process uh she was. So, it's interesting because the president isn't going to be objecting, I don't think in the Constitutional Court. I don't think he's going to be challenging the recusal of Justice Khampepe there as well. Of course, we'll be keeping a a very close eye on that next uh month. Someone says, "Believe me, Khomotso, when I tell you that if and when the secrets of what was decided upon behind closed doors during the TRC, the explosive nature of compromise of compromise will make the Masondo Commission of Inquiry look like a walk in the park. We haven't seen or heard anything yet."