Retired justice Sisi Khampepe had the legal obligation to disclose fully her involvement in the National Prosecuting Authority (NPA) when appointed to chair the commission probing failure of investigations and prosecution of apartheid-era crimes, advocate Ngwako Maenetje argued on Monday.
Maenetje, representing former president Thabo Mbeki, made the argument before a full bench of the high court in Johannesburg on Monday in a court application seeking to remove Khampepe as the chair of the commission.
Khampepe leads a commission probing whether the failure of investigations by police and the NPA to prosecute the heinous apartheid crimes was due to political influence.
The court bid, by Mbeki and former president Jacob Zumais pinned on the fact that Khampepe was a member of the Truth and Reconciliation Commission (TRC) and its amnesty committee, appointed by the late president Nelson Mandela in 1995, and served as the deputy national director of public prosecutions from September 1998 to December 1999.
Maenetje argued Khampepe, as a retired judge, had a responsibility to disclose before the commission her involvement in the NPA in advising how TRC matters should be dealt with former NPA boss Bulelani Ngcuka and her involvement in the TRC amnesty committee to clear questions over impartiality.
He argued Khampepe from December 2025 failed to fully disclose when facing the allegation of her involvement in TRC cases, including her role deciding on matters of families before the commission.
He said the legal team had to go through archives and cite TRC cases she was involved in, including that Khampepe formed part of the panel that refused amnesty applications brought by several members of the ANC, including Zuma and Mbeki.
Both former presidents are expected to testify at the commission.
“The duty is on the judge to disclose,” Maenetje said.
“This is a classic case of failure of a duty to disclose at various opportunities. In the recusal applications themselves the allegation is repeated, the answer of the commission repeats the allegation and says nothing about it.”
The bench quizzed Maenetje on the principle that the onus lay on the applicants to detail the decisions Khampepe allegedly made that could compromise her and not on Khampepe to disclose.
Maenetje cited previous cases, arguing they establish a principle in law that judges had to disclose when they had previous affiliations with entities in cases they had to decide on.
At heart the commission seeks to investigate if there was political interference or the NPA failed on its own, Maenetje argued, having been second in charge in the NPA Khampepe may not be impartial.
He argued the commission was created to investigate the failure of prosecutions of the cases against individuals not granted amnesty, which was directly linked to Khampepe.
“Now we come to the high court, no cases are put up of her role in the amnesty before her. We have a half denial, but it says nothing about advising advocate Ngcuka about how to handle TRC cases. We do not have a full disclosure.
“This court and us are in the dark about what her full role was in relation to TRC cases. You cannot leave the doubt lingering and continue sitting because you are undermining public confidence in the processes of the commission.”
He argued that while her public CV details her role in the TRC there was not much information on her NPA involvement in TRC cases.
President Cyril Ramaphosa, being the one who constituted the commission, is not opposing the application, citing that he was not aware of Khampepe’s involvement in her previous roles when he appointed her.
Ramaphosa said had he known about the involvement he would have not appointed her.
Lukhanyo Calata, whose father was murdered by the apartheid government and among families of anti-apartheid activists testifying before the commission, described Ramaphosa’s affidavit as one that cannot be believed by the court.
“The president is not to be believed unless he is suggesting that he and his advisers are rank amateurs who are staggeringly incompetent and demonstrably incapable of carrying out due diligence,” Calata argues.
Calata said Ramaphosa has gone out of his way to “promote the demise of the commission” he created and support his predecessors.
In the absence of cross-examination, the high court in Johannesburg has to accept Ramaphosa did not lie under oath that he was not aware of Khampepe’s past roles before appointing her, advocate Dali Mpofu has argued.
Mpofu, representing Zuma, pushed back against the arguments in court that Ramaphosa in the affidavit was not honest about the appointment.
“They say he [Ramaphosa] is lying; he must have known she worked for the NPA. The president of this country puts under oath ‘I was not aware’. The other side says, no that is not true.
“On what basis can the court make that finding without cross examining the president that he has perjured himself before this court. He has not, that finding can never be made. The court has to accept that the president was not aware of these facts,” Mpofu contented.
He relied on the affidavit to submit to the court that the appointment of Khampepe could be described as “irrational” based on Ramaphosa’s submission under oath.
“It is a grave injustice to do something that is destined to go to the dustbin,” Mpofu argued, and the president’s stance cast doubt on whether he would adopt the recommendations of the commission.
Ramaphosa, in his court papers, did not suggest he would not accept the commission’s report amid litigation.
Mpofu argued the objection the application cannot be before the court because the applicants, Zuma and Mbeki, failed to obtain consent before instituting legal action Khampepe.
The Superior Courts Act section 47 (1) requires litigants against a judge to first make an application to the head of a court before initiating a case.
Mpofu argued the objection falls flat because the section “does not apply to retired judges”.
He further argued the applicants did not make the application because the challenge was against Khampepe in her capacity as the chair of the commission, not necessarily as a judge.
There are two contradicting judgments of the high court on the matter, the latest is one by Fiona Dippenaar and a previous one before it was by judge Graham Moshoana.
Dippenaar ruled litigants have to seek permission before instituting cases against judges even when they preside over commissions.
Moshoana had found the contrary. Mpofu argued for the court to adopt Moshoana’s judgment.
