Attempts by former presidents Jacob Zuma and Thabo Mbeki to get retired Constitutional Court Justice Sisi Khampepe to recuse herself from the Truth and Reconciliation Commission cases inquiry will not be opposed by President Cyril Ramaphosa.
Image: Itumeleng English / Independent Newspapers
President Cyril Ramaphosa will not oppose ex-presidents Jacob Zuma and Thabo Mbeki's bid to force the chairperson of the Truth and Reconciliation Commission (TRC) cases inquiry, retired Constitutional Court Justice Sisi Khampepe, to recuse herself.
In an explanatory affidavit filed this week, Ramaphosa indicated that he did not oppose the recusal applications, which are Zuma and Mbeki’s Gauteng High Court, Pretoria, bids seeking an order directing the president to terminate Justice Khampepe’s appointment.
Ramaphosa told the court that when he appointed Justice Khampepe to chair the commission in May last year, he was not aware of the allegations made by Zuma and Mbeki in their attempt to have her recuse herself.
The allegations include that in 1995, Justice Khampepe was appointed by late former president Nelson Mandela as a TRC commissioner, and in the following year, she was appointed a member of the TRC's amnesty committee.
In addition, between September 1998 and December 1999, she was a deputy national director of public prosecutions and during this period, she apparently played a role on the human rights investigation unit established by her then boss Bulelani Ngcuka to advise him on how to handle the cases referred to the National Prosecuting Authority (NPA) by the TRC.
“As a member of the amnesty committee, the chair refused the killers of Richard and Irene Motasi amnesty. This appears in Schedule 17 of the TRC's amnesty committee's decision AC 99/0035. The family members of Richard and Irene Motasi are applicants before the commission and the 18th applicant in the high court application and a party at the commission,” Ramaphosa said.
He continued: “As a member of the amnesty committee in AC/2001/064, the chair considered and denied amnesty to RJ Venter, in the 'Pebco Three' murders near Cradock. The family members of the Pebco Three are parties in the commission. They are also the 16th, 20th and 21st applicants in the High Court application and parties at the Commission”.
Justice Khampepe was party to another matter that came before the amnesty committee in which several ANC members sought amnesty.
“Among those are two parties who have been cited as interested persons in these proceedings, they are, former presidents Mbeki and Zuma. The chair was part of the panel that refused their amnesty applications,” Ramaphosa added.
He said he requested Justice Minister Mmamoloko Kubayi to approach Justice Khampepe to consider standing down as chairperson.
“She was asked that in light of the controversy over her appointment and the damage to the public image of the commission. I am informed that she declined to step down.
“Consequently, she remains the chair until removed by court... I have no objection to the court ordering the removal of the chairperson,” Ramaphosa added.
He said had he been aware of the allegations at the time that he appointed Justice Khampepe as chairperson of the commission, he would not have made the appointment.
“That is because I would have sought to avoid potential public criticism of the commission, or the Inquiry, or a review attack on the appointment of Justice Khampepe as chair, arising out of those allegations,” he added.
The president said since her appointment, Justice Khampepe has not informed him of her prior involvement at the TRC or NPA, and that the applications for her recusal had to be decided by the commission, which dismissed them on January 30 this year, and the recusal applications are now subject to review by the High Court.
He added that the recusal applications had to take their course without his participation.
“I am advised that as a co-respondent, that has not intervened as an applicant, I can do no more than record that I do not oppose the review applications. That is why I submit this explanatory affidavit,” Ramaphosa said.
Zuma and Mbeki are seeking an order declaring Justice Khampepe’s conduct in dismissing their applications for her recusal to be unconstitutional and invalid in terms of the Constitution, as well as reviewing and setting aside such decision on the grounds of the Promotion Administrative Justice Act (Paja) and alternatively the principle of legality.
Mbeki also wants as an alternative to Zuma's papers, an order directing Ramaphosa to terminate the appointment of Justice Khampepe as commissioner and chairperson of the commission with immediate effect, and declaring that all acts, decisions, directives, and proceedings undertaken by the commission with her involvement, whether directly or indirectly, are unlawful and of no force or effect, and accordingly constitute a nullity.
The commission has submitted to the High Court that the applications be dismissed with costs, as the various allegations by Zuma and Mbeki hold no merit.
“It follows that the basis of their challenge and reliance upon Paja is entirely misplaced and cannot be sustained,” the commission stated.
Zuma has asked that the matter be heard next Tuesday, March 17.
loyiso.sidimba@inl.co.za