Khampepe’s legal team argues ‘she has been left out to dry’

2026-03-18 - 10:21

The Gauteng High Court in Johannesburg heard heated arguments this week as retired Justice Sisi Khampepe’s legal team defended her against what they described as “personal attacks” linked to her past role at the Constitutional Court. The matter stems from review applications brought by former presidents Jacob Zuma and Thabo Mbeki, who are seeking to have Khampepe recuse herself as chairperson of the commission of inquiry into stalled prosecutions of apartheid-era crimes identified in the Truth and Reconciliation Commission (TRC) report. Zuma and Mbeki filed separate applications challenging her continued role, arguing that her past judicial decisions may compromise her impartiality. The court has reserved judgment on whether to set aside Khampepe’s refusal to step down. ALSO READ: WATCH: Families slam Mbeki, Zuma over TRC delays as Ramaphosa pledges action ‘Packed with insults’ Advocate Tembeka Ngcukaitobi, representing Khampepe, dismissed the claims, insisting there was no overlap between her past judicial work and her current role. He accused Zuma’s legal papers of being “packed with insults” and said Khampepe was being unfairly targeted. “She is performing a public duty, yet personal attacks have been directed against her with reckless abandon,” Ngcukaitobi told the court. “She has absolutely no one to protect her, let’s be serious. She really has no one to protect her, including the very president who appointed her. She has been left out to dry on her own.” Ngcukaitobi stressed that Khampepe’s past judgments at the Constitutional Court, including those that led to Zuma’s incarceration, had no bearing on her current role. “This is not the case of a person who used to be a witness or a prosecutor who’s now a judge in the same cases that they were witnessing or prosecuting,” he argued. Section 47 protection Ngcukaitobi urged the court to recognise that section 47 of the Superior Courts Act was designed to protect judges in positions like Khampepe’s. He noted that President Cyril Ramaphosa had not opposed the applications by Zuma and Mbeki, leaving Khampepe exposed. “The applicants have failed to secure the requisite permission for these proceedings in the first instance,” Ngcukaitobi said. “Section 47 was specifically designed to protect judges in her position.” He added that Khampepe had been “threatened, victimised and accused of criminal conduct without a shred of evidence”. Zuma’s allegations On Monday, Zuma’s lawyer, Advocate Dali Mpofu, claimed that a whistleblower had revealed emails and WhatsApp messages allegedly exchanged between Khampepe and Chief Evidence Leader Advocate Ismael Semenya. Mpofu argued this amounted to gross misconduct and asked the court to review her refusal to recuse herself. Ngcukaitobi countered that Zuma was attempting to engineer “a reverse onus”. He pointed to Khampepe’s earlier ruling, where she noted: “In his founding affidavit, [Zuma] states that he will produce this evidence if the allegations are denied, but will do so before another forum.” “Mr Zuma pretends to be asking for information that, on his own version, he has,” Ngcukaitobi said, dismissing the application to compel the commission to hand over the alleged communications. He also criticised Zuma’s request for a personal and punitive costs order against Khampepe, saying this demonstrated why section 47 protections were applicable. “Because these are not costs that are going to be borne by the office,” he argued. ALSO READ: ‘I’ve got a hole in my soul’ – Son of Fort Calata testifies at TRC inquiry Ramaphosa’s position President Cyril Ramaphosa filed an affidavit agreeing to abide by the court’s decision. His lawyer, Advocate Timothy Bruinders, told the court that the president was not empowered to remove Khampepe, as only the court could do so. Bruinders said Ramaphosa had not known the full details of Khampepe’s past roles at the National Prosecuting Authority (NPA) and TRC hearings when appointing her. “He would not have appointed her if he was aware,” Bruinders said. Mbeki’s argument Advocate Ngwako Maenetje, representing Mbeki, argued that Khampepe was not entitled to judicial protection because she was acting as chairperson of a commission rather than performing judicial functions. Maenetje insisted that her role was administrative and therefore outside the scope of the protections envisaged in law. A battle over credibility The proceedings highlight the tension between Khampepe’s defenders, who argue she is being unfairly vilified, and her critics, who claim her impartiality is compromised. Ngcukaitobi’s plea to the court underscored the stakes: “She is performing a public duty, yet personal attacks have been directed against her with reckless abandon. She has been left out to dry on her own.” The court’s decision, once delivered, will not only determine whether Khampepe continues to chair the commission but could also set a precedent for how retired judges are treated when appointed to lead inquiries into politically sensitive matters. 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