In Conversation With Martha Ngoye Acting ED
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The Gauteng High Court, Johannesburg on Monday said it did not have the jurisdiction to decide over the application for the dismissal of the application by former presidents Jacob Zuma and Thabo Mbeki for Justice Sisi Khampepe to recuse herself from the TRC inquiry.
In a majority judgment consented to by two judges, the court upheld a preliminary argument by the Khampepe Commission that as Justice Khampepe is a judge, although retired, Zuma and Mbeki should have obtained prior permission to haul her before the court.
The court said they should have first asked the permission of Chief Justice Mandisa Maya before they launched the review proceedings. This is per Section 47 of the Superior Courts Act, which states that the head of court must give the go-ahead before legal proceedings may be instituted against a judge. This is, amongst others, to safeguard judges from being hauled to court by aggrieving parties who are unhappy about remarks a judge might make about them in judgments.
Advocate Tembeka Ngcukaitobi earlier argued on behalf of the commission that the matter should be struck from the roll as it is not properly before the court. His argument was that Section 47 of the Superior Courts Act clearly stated that a judge - which includes a retired judge - can never face civil legal proceedings (which includes a review application in this case) prior to the go-ahead of the head of the court. This was not done in this case.
“She is left to dry on her own,” he said. Ngcukaitobi pointed out that Section 47 is the only protection she has, which she is being denied.
Zuma and Mbeki sought Justice Khampepe’s removal as chair of the commission probing apartheid-era cases to determine whether there was political interference in not prosecuting those cases.
They argued that her failure to disclose the full extent of her role as deputy years ago in the National Prosecuting Authority, as well as the role she played earlier during TRC hearings, creates a reasonable apprehension of bias.
In a majority judgment consented to by two judges, the court upheld a preliminary argument by the Khampepe Commission that as Justice Khampepe is a judge, although retired, Zuma and Mbeki should have obtained prior permission to haul her before the court.
The court said they should have first asked the permission of Chief Justice Mandisa Maya before they launched the review proceedings. This is per Section 47 of the Superior Courts Act, which states that the head of court must give the go-ahead before legal proceedings may be instituted against a judge. This is, amongst others, to safeguard judges from being hauled to court by aggrieving parties who are unhappy about remarks a judge might make about them in judgments.
Advocate Tembeka Ngcukaitobi earlier argued on behalf of the commission that the matter should be struck from the roll as it is not properly before the court. His argument was that Section 47 of the Superior Courts Act clearly stated that a judge - which includes a retired judge - can never face civil legal proceedings (which includes a review application in this case) prior to the go-ahead of the head of the court. This was not done in this case.
“She is left to dry on her own,” he said. Ngcukaitobi pointed out that Section 47 is the only protection she has, which she is being denied.
Zuma and Mbeki sought Justice Khampepe’s removal as chair of the commission probing apartheid-era cases to determine whether there was political interference in not prosecuting those cases.
They argued that her failure to disclose the full extent of her role as deputy years ago in the National Prosecuting Authority, as well as the role she played earlier during TRC hearings, creates a reasonable apprehension of bias.
