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[2026] ZAGPJHC 375
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Zuma and Another v Chairperson of Commission - Commissioner Khampepe and Others (2026/026936) [2026] ZAGPJHC 375 (30 March 2026)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
Case
Number:
2026-026936
(1)
REPORTABLE: YES
(2)
OF INTEREST TO OTHER JUDGES: YES
(3)
REVISED: YES
30
March 2026
In
the matter between:
JACOB
GEDLEYIHLEKISA ZUMA
First Applicant
THABO
MVUYELWA MBEKI
Second Applicant
and
THE CHAIRPERSON OF THE
COMMISSION:
COMMISSIONER
SISI KHAMPEPE
First Respondent
SECRETARY
OF THE COMMISSION
Second Respondent
ADVOCATE
ISHMAEL SEMENYA SC
Third Respondent
COMMISSIONER
FRANS KGOMO
Fourth Respondent
CALATA
GROUP
Sixth Respondent
NATIONAL
PROSECUTING AUTHORITY
Eighth Respondent
MINISTER OF JUSTICE
AND CONSTITUTIONAL
DEVELOPMENT
Ninth Respondent
PRESIDENT
OF THE REPUBLIC OF SOUTH AFRICA
Tenth Respondent
This Judgment is handed
down electronically by circulation to the parties by email, and by
publication on Court Online. The date
for the handing down is deemed
to be 30 March 2026.
JUDGMENT
MUDAU
ADJP (BAQWA J CONCURRING, AND MODIBA J DISSENTING IN ASEPARATE
JUDGMENT)
[1]
Introduction
[1]
The applicants, Mr Jacob Gedleyihlekisa
Zuma and Mr Thabo Mvuyelwa Mbeki, have approached this Court on an
urgent basis. They seek
a range of relief against the first
respondent, Commissioner Sisi Khampepe, who, as the President's
appointee, serves as the Chairperson
of a Commission of Inquiry
investigating allegations of political interference in the
prosecution of Truth and Reconciliation Commission
(TRC) cases. The
relief includes a declaration that her dismissal of the first
applicant's recusal application is unconstitutional
and invalid, a
review and setting aside of that decision, and an order for her
removal as Chairperson of the Commission. By consent
of the parties,
Mr Mbeki, previously the seventh respondent, was joined as the second
applicant during the proceedings.
[2]
The application is opposed by the first to
sixth respondents (the Commission and Calata Group respondents).
Before the merits can
be considered, they have raised a point
in
limine
. They argue that the entire
proceedings are a nullity and that this Court lacks the competence to
entertain the application. This
is because they contend that the
applicants have failed to comply with the peremptory provisions of
section 47 of the Superior
Courts Act 10 of 2013 (Superior Courts
Act).
[3]
At the outset of the hearing, the
applicants sought a ruling in relation to an interlocutory
application brought to compel the production
of certain documents
which were alleged to be missing from the review record. After the
argument, the court made a ruling and indicated
that it would provide
reasons for this in its main judgment. It is to these reasons that I
now turn.
The
Interlocutory Application to Compel Compliance with Rule 53(1)(b)
[4]
It is necessary to set out the procedural history of the
interlocutory application foreshadowed in the applicants' notice.
On
19 February 2026, the first applicant delivered a notice of
interlocutory application seeking to compel the first to fifth
respondents to comply with Rule 53(1)(b) of the Uniform Rules of
Court. The relief sought included an order compelling the respondents
to add to the record:
(a)
the alleged email exchanges between the evidence leader(s) referred
to in the founding
affidavit in the recusal application;
(b)
the correspondence from the NPA and/or Department of Justice
notifying the Commission of
the intention to institute the recusal
application;
(c)
the email allegedly sent by the Chairperson to Adv Semenya SC on 5
November 2025, dealing
with the issues raised in the recusal
application;
(d)
copies of any research conducted by the Commissioners and passed on
to the Evidence Leaders
before the arguing of the recusal
application;
(e)
transcripts or copies of the WhatsApp messages between the
Chairperson and the Chief
Evidence Leader; and
(f)
all other outstanding documents and/or reasons which shed light on
the impugned decision
and/or alleged misconduct of the first
respondent.
[5]
This interlocutory application was argued together with the main
application at the hearing. The Court was requested to
rule on it as
a preliminary matter, given its potential bearing on the sufficiency
of the record and the applicants' ability to
prosecute their case.
However, after hearing the argument, the Court concluded that the
interlocutory application could not be
decided in isolation. The
ruling was reserved to be delivered with the main judgment. The
reason for this approach is that the
interlocutory application is
inextricably linked to the merits of the main application. The
documents sought relate directly to
the applicants' allegations of
actual bias and misconduct on the part of the first respondent. To
rule on the interlocutory application
without determining the
threshold question of whether the main application is properly before
the Court would be procedurally unsound.
If the main application were
to be dismissed on jurisdictional or other preliminary grounds, the
interlocutory application would
become moot.
[6]
As will become apparent from the discussion that follows, the Court
has upheld the jurisdictional point raised by the
first to sixth
respondents. The main application is a nullity. It follows that the
interlocutory application to compel compliance
with Rule 53(1)(b)
falls away. There is no competent main application in respect of
which further discovery or record supplementation
can be ordered.
Accordingly, no ruling on the merits of the interlocutory application
is necessary or competent. The ruling reserved
on that application is
hereby discharged, and the application to compel is dismissed as
moot.
[7]
Before proceeding with an analysis of the
jurisdictional point raised by the first to sixth respondents, it is
prudent to place
the first respondent's role within its proper
constitutional and legal context and to address the unique position
adopted by the
tenth respondent, President Ramaphosa. I do so in
turn.
The Nature of the
Commission and the First Respondent's Status
[8]
The Commission, over which Justice Khampepe
presides, was established by the President of the Republic of South
Africa, the tenth
respondent, President Cyril Matamela Ramaphosa, in
terms of section 84(2)(f) of the Constitution, read with section 1 of
the Commissions
Act 8 of 1947, on 29 May 2025. Its mandate, as
defined in its Terms of Reference, is to investigate whether there
was political
interference in the prosecution of apartheid-era cases,
particularly those arising from the TRC process, during a specified
period.
[9]
The first respondent is cited in the founding
affidavit as "Commissioner Sisi Khampepe, who is a retired Judge
and former Constitutional
Court Justice". The applicant
expressly states that she is cited "in her non-judicial capacity
as the Chairperson of
a Commission of Inquiry". This distinction
lies at the heart of the dispute regarding section 47. However, it is
noteworthy
that in her confirmatory affidavit attached to the
answering papers, the first respondent herself states: "I depose
to this
affidavit in my capacity as the Chairperson of (the
Commission), as appointed by the President of the Republic of South
Africa,
President Cyril Ramaphosa." She does not disavow her
status as a retired judge; rather, she acts in that capacity while
performing
the functions of Chairperson.
The Tenth
Respondent's Intervention
[10]
President Ramaphosa
has
filed an explanatory affidavit and comprehensive heads of argument,
and the National Prosecuting Authority (NPA), the eighth
respondent,
has likewise done so. Critically, the President does not oppose the
relief sought by the applicants. His note is not
one of opposition,
but of explanation and, in certain respects, support for the concerns
underlying the recusal application.
[11]
In his explanatory affidavit, the President
confirms that he established the Commission and appointed Justice
Khampepe. He considered
her a suitable appointment because he wanted
a judge to chair the Commission, and she was a former Justice of the
Constitutional
Court. However, he deposes that at the time of her
appointment, he was unaware of her alleged prior involvement with the
TRC and
the NPA, as well as the allegations which are the subject
matter of the recusal application in the Commission proceedings. He
states,
in no uncertain terms:
"Had I been aware of
these allegations at the time that I appointed Justice Khampepe as
Chair of the Commission, I would not
have appointed her. 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."
[12]
The President further states that he requested
that the Minister of Justice, the ninth respondent, approach Justice
Khampepe to
consider standing down as Chair, considering the
controversy and the damage to the Commission's public image. He
informs the Court
that she declined to step down. He concludes by
stating unequivocally: "I have no objection to the Court
ordering the removal
of the Chairperson."
[13]
In his heads of argument, counsel for the
President submits that it is proper for him not to oppose the relief
because his exercise
of executive power is complete and that the
Court best adjudicates the disputed allegations. It is also submitted
that his filing
of an explanatory affidavit is "proper and
commendable" as it assists the Court. The President abides by
the decision
of the Court.
[14]
The President's intervention is significant in
several respects. It provides context to the public importance of the
matter and
confirms that the highest office in the land has serious
concerns about the first respondent's position. However, the
jurisdictional
point raised by the Commission respondents is
dispositive of the matter. The President abides the decision of this
Court. He does
not, and cannot, waive the statutory requirement of
section 47. The question of whether this Court has jurisdiction to
hear the
matter must be decided on the law, not on the stance of any
party. The President's intervention will, however, be considered in
the context of the appropriate order for costs.
Discussion of the
jurisdictional point raised by the first to sixth respondents
[15]
Section
47(1)
of the
Superior Courts Act,
[2
]
provides:
"Except for an
application made in terms of the Domestic Violence Act, 1998 (Act 116
of 1998), no civil proceedings by way
of summons or notice of motion
may be instituted against any judge of a Superior Court, and no
subpoena in respect of civil proceedings
may be served on any judge
of a Superior Court, except with the consent of the head of that
court or, in the case of a head of
court or the Chief Justice, with
the consent of the Chief Justice or the President of the Supreme
Court of Appeal, as the case
may be."
[16]
The Commission respondents submit that the first
respondent, Justice Khampepe, is a retired judge of the
Constitutional Court, a
fact which is not in dispute. They argue that
section 47 applies with equal force to retired judges who continue to
perform judicial
or public service, such as chairing a commission of
inquiry. It is common cause that the applicants did not seek or
obtain the
consent of the Chief Justice, as the head of the
Constitutional Court, before instituting these proceedings against
the Chairperson.
The central question for determination at this
preliminary stage is whether this failure is fatal to the
application.
The Applicable
Legal Principles and Binding Precedent
[17]
Section 47
of the
Superior Courts Act is
the
successor to
section 25
of the now-repealed Supreme Court Act 59 of
1959. Its main purpose is to protect the independence of the
judiciary in a modern
constitutional democracy based on a separation
of powers and the rule of law. Section 165 of the Constitution is the
cornerstone
of this protection, providing:
"(2) The courts are
independent and subject only to the Constitution and the law, which
they must apply impartially and without
fear, favour or prejudice.
(3) No person or organ of
state may interfere with the functioning of the courts.
(4) Organs of state,
through legislative and other measures, must assist and protect the
courts to ensure the independence, impartiality,
dignity,
accessibility and effectiveness of the courts."
[18]
These constitutional imperatives are reinforced by
international instruments such as the Bangalore Principles of
Judicial Conduct,
which this Court may have regard to in interpreting
the scope of judicial protection. The Preamble to the Bangalore
Principles
states that they are intended to:
"provide a framework
for regulating judicial conduct [and] also to assist members of the
executive and the legislature, and
lawyers and the public in general,
to better understand and support the judiciary."
[19]
This provision is of particular relevance here. It
underscores that the protection of the judiciary is a shared
responsibility,
extending beyond the judges themselves to all
branches of government and society. The President's conduct in filing
an explanatory
affidavit to assist the Court, rather than opposing
the relief, and in seeking to avoid public criticism of the
Commission, is
entirely consistent with this principle of supporting
the judiciary. Value 1 of the Bangalore Principles, dealing with
Independence,
further provides in clause 1.6:
"A judge shall
exhibit and promote high standards of judicial conduct in order to
reinforce public confidence in the judiciary
which is fundamental to
the maintenance of judicial independence."
[20]
These
principles underscore that the maintenance of judicial independence
requires both that judges act with propriety and that
other branches
of government and the public support the judiciary. Section 47 is a
legislative mechanism that gives effect to this
duty of support. It
ensures that judges are not drawn into costly, distracting, and
unwarranted personal litigation arising from
the discharge of their
official duties, thereby reinforcing public confidence in the
judiciary.
Section
47 provides an important control mechanism to ensure that abusive
proceedings are not brought against judges and that the
dignity of
the judiciary, which is the primary force behind the legitimate
judicial power, is at all times preserved. The rule
of law is
promoted by upholding the dignity of courts, as the courts have no
army or police force at their disposal to execute
court orders.
[3]
[21]
Section 47 (1) is clear and precise in relation to
which proceedings it applies and those to which it does not apply.
The proceedings
in respect of which it does not apply are
identifiable with precision at the commencement of the section. These
are: “an
application made in terms of the Domestic Violence
Act, 1998 (Act 116 of 1998)”. No other proceedings are
specified. The
express exclusion of a particular type of proceedings
by the Legislature clearly indicates the narrow scope of application
of the
provision, with express reference to the proceedings that
would otherwise be covered. The provision is broad in its reach.
Section
47 (1) applies to “civil proceedings by way of summons
or notice of motion instituted against any judge of a superior
court”.
There is no denying that these are civil proceedings
brought by notice of motion in terms of Rule 53 of the Uniform Rules
of Court.
In the first applicant‘s founding affidavit, the
first respondent is described as Commissioner Sisi Khampepe, a
retired Judge
and former Constitutional Court Justice.
[22]
It
is trite that the interpretation of legislation must be faithful to
the text, notwithstanding that the text is to be interpreted
in
context and with due regard to its purpose
[4]
.
The adoption of an interpretation by a court that is not sustainable
on the text “is to cross the divide between interpretation
and
legislation”
[5]
. To do so
would be a classic example of breaching the separation of powers
between the legislature and the judiciary.
[23]
The
ambit
of section 47(1) has been addressed on various occasions in our
Courts, specifically in this Division. In
Soller
v President of the Republic of South Africa and Others
[6]
,
Ngoepe
JP firmly rejected the contention that section 25 of the Supreme
Court Act (the precursor to section 47(1)) vitiated
a complainant's
right of access to court under section 34 of the Constitution. He
held that the consent requirement is not an obstacle
to meritorious
claims, as a preliminary investigation would be conducted and leave
granted if a prima facie case is shown.
[24]
In
Engelbrecht
v Khumalo
[7]
Mlambo
JP provided a comprehensive exposition of section 47(1). He held that
the provision applies to civil proceedings intended
to be instituted
against a judge in the judge's personal and/or judicial capacities,
and that it has been interpreted expansively
to also cover actions
arising from their personal interactions.
[8]
Critically, he described section 47(1) as playing a "gatekeeping
function" that does not provide a complete bar against
the
institution of legal proceedings against judges but rather ensures
that only meritorious claims proceed.
[9]
[25]
In
Freedom
Under Law v Judge Motata
[10]
(
FUL
),
Mlambo JP delivered a seminal judgment on the reach of section 47 to
retired judges. He held that section 47(1) does not distinguish
between active and retired judges. Importantly, he engaged with the
statutory definition of judicial service in
section 1
of the
Judges'
Remuneration and Conditions of Employment Act 47 of 2001
, which
defines "service" to include "service as a chairperson
or a member of a commission as contemplated in the
Commissions Act,
1947". The
FUL
judgment
also held unequivocally that "[r]eview proceedings are civil
proceedings and that is the only interpretation that
applies."
[11]
[26]
The
FUL
judgment also articulated the purpose served by section 47 in a
manner that resonates with the Bangalore Principles:
"In essence the
section seeks to insulate judges from unwarranted and ill-conceived
legal proceedings aimed at them. The need
to protect judges from
unwarranted litigation is not difficult to fathom. The core function
of Judges is the adjudication of disputes
involving competing
interests daily. The judgements they hand down as well as the
statements they make in their judgements invariably
displease some
litigants and sometimes their legal representatives. It is integral
to the adjudication function of Judges that
they should be free from
any fear of repercussions for doing their work. It is necessary
therefore that Judges be protected from
the ever present threat of
legal proceedings directed at them arising from the execution of
their official responsibilities. This
is necessary to ensure that
they adjudicate disputes unhindered and that they do so 'without
fear, favour or prejudice'."
[27]
In
Amalgamated
Lawyers Association v Judicial Service Commission and Others
[12]
,
Sutherland DJP held that a review application, in the context of
section 47(1), instituted without the requisite consent is “ipso
facto invalid” and that there is no room for condonation.
[13]
The combined effect of these authorities
-
Soller
,
Engelbrecht
,
FUL,
and
Amalgamated
Lawyers Association
-
establishes a clear and consistent line of precedent within the
Gauteng Division. The principles derived from these cases are:
(a)
Section 47 applies to all civil
proceedings, including review applications;
(b)
It applies to judges in both their judicial
and personal capacities;
(c)
It applies equally to retired judges who
continue to perform judicial service;
(d)
The definition of "service"
includes chairing a commission of inquiry;
(e)
The consent requirement is a jurisdictional
prerequisite; non-compliance renders proceedings void
ab
initio
; and
(f)
There is no room for condonation for
failure to obtain prior consent.
The Mantashe
Judgment
[28]
The
most recent and directly applicable authority is the judgment of
Dippenaar J in
Mantashe
v Justice Raymond Zondo N.O and Another
[14]
.
That case concerned a review application brought against former Chief
Justice Zondo in his capacity as Chairperson of the State
Capture
Commission. The applicant in that matter, like the applicants here,
argued that section 47 consent was not required because
Justice Zondo
was cited in his capacity as Chairperson of the Commission and not as
a judge.
[29]
Dippenaar J comprehensively rejected that
argument. She held:
"I
conclude that Justice Zondo, acting as the Chairperson of the
Commission, was thus performing a judicial function. Even
if a
distinction were to be drawn in s 47(1) between judicial and
non-judicial functions, which the provision does not do and which
the
authorities do not support, the chairing of a commission of enquiry
falls squarely within what are ordinarily and legally considered
to
be judicial functions. Consent under s 47(1) of the Act was thus
required."
[15]
[30]
The
Mantashe
judgment engaged extensively with the statutory definition of service
in the Judges' Remuneration Act,
[16]
which explicitly includes service as a chairperson or member of a
commission. The court held that this definition demonstrates
that
when a judge serves as a commissioner, he or she is performing a
judicial function for which he or she is remunerated as a
judge.
[31]
Most pertinently, Dippenaar J also addressed the
consequences of non-compliance:
"Proceedings
cannot be saved absent consent prior to commencement of the
proceedings. Several decisions of the courts have
come to the
conclusion that such proceedings are irregular... There is no room
for condonation and therefore no room for latitude.
The proceedings
are void ab initio."
[17]
The Memela Judgment
and the Doctrine of Precedent
[32]
The
applicants rely on the judgment in
Memela
v Chairperson of the State Capture Commission of Inquiry and
Others
[18]
,
where a court in the Gauteng Division, Pretoria, held that the
chairperson of the State Capture Commission was not contemplated
in
section 47(1) and that consent was therefore not required.
[33]
This Court is duty-bound to consider whether to
follow
Memela
.
The doctrine of
stare decisis
is fundamental to the rule of law. A court may depart from precedent
only if the earlier decision is clearly wrong, arrived at
on some
fundamental departure from principle, or a manifest oversight or
misunderstanding amounting to a palpable mistake.
[34]
The
Mantashe
judgment comprehensively analysed the
Memela
judgment and its relationship to the binding authorities in this
Division. Dippenaar J held:
"Insofar as Memela
concluded that the jurisdiction of the High Court is not ousted, I am
in respectful agreement. However,
in the light of binding precedent
in this Court, I respectfully cannot agree with the conclusion that
consent in terms of s 47(1)
was not required...
The nub of the judgment
in Memela concerns the finding that the immunity protection afforded
by s 47(1) is limited to judges performing
the functions of a judge
and that the chairing of a commission of enquiry is not a judicial
function but a public or statutory
function. That does not accord
with the authorities referred to in this judgment, which give s 47(1)
an expansive definition which
includes affording protection to Judges
in both their judicial and private capacities. With respect, the
judgment fails to take
these considerations and precedent into
account.
I
agree with the respondents' submission that the Learned Judge was
bound by the previous decisions in this Division, unless he
found
them to be clearly wrong. He did not."
[19]
[35]
The
Mantashe
judgment also observed that
Memela
disregarded the statutory definition of service in the Judges'
Remuneration Act, which explicitly includes service as a chairperson
or member of a commission. The court concluded that
Memela
is "clearly wrong" and declined to follow it.
[36]
I am in full agreement with the reasoning and
conclusion in
Mantashe
.
The
Memela
judgment is, in my respectful view, an outlier that failed to engage
with binding precedent from this Division. It did not find
the prior
judgments to be clearly wrong, and it provided no reasoned basis for
departing from them. This court is bound by the
decisions in
Soller
,
Engelbrecht
,
and
FUL
.
To the extent that
Memela
conflicts with these authorities, it is duty-bound to follow the
established line of precedent
Support from Other
Divisions
[37]
The interpretation of section 47 adopted by this
Court is not unique to the Gauteng Division. Other divisions have
reached similar
conclusions, reinforcing the correctness of this
approach.
[38]
In
Maluleke
v National Director of Public Prosecutions and Others,
[20]
Hendricks
J, sitting in the Limpopo Division, considered the application of
section 47. The applicant contended that no relief was
claimed
against the Judge President, who was merely cited as an interested
party. Hendricks J rejected this argument, holding:
" ...That the relief
sought will have a bearing on the person of the Judge President, who
is cited in his personal capacity,
is beyond question... The case law
makes it undoubtedly clear that once a Judge/Judge President is cited
in his/her personal capacity,
the provisions of section 47 (1) become
applicable."
[39]
This reasoning is directly applicable. The
applicants have cited Justice Khampepe as the first respondent, and
the relief sought
includes a declaration that her conduct is
unconstitutional and an order for her removal. This unquestionably
affects her person.
The purpose of section 47 - to guard the
integrity of the judiciary as an institution - would be defeated if
judges could be compelled
to participate in proceedings without the
protective filter of prior consent.
[40]
In
Mthenjwa
v Steyn and Another,
[21]
Tlaletsi
JP in the Western Cape Division held that an objection of
non-compliance with section 47(1) is significant and is not a
matter
of form over substance or simply a procedural issue, as it has
procedural and substantive elements. The court rejected the
argument
that it was unnecessary to seek permission to institute proceedings
against a judge, on the ground that doing so would
contravene section
34 of the Constitution.
[41]
In NP v
LP
[22]
relied upon by the
applicants, the court clarified that section 47(1) aims to protect
judges from unmeritorious claims and to prevent
disruptions to their
judicial functions. In that case, the applicant had sought leave
to
sue the respondent, a retired Judge, for a protection order in terms
of the
Domestic Violence Act
[23
]
specifically
excluded by
section 47
(1), (thus making that case clearly
distinguishable), and for the applicant’s spousal maintenance,
and that of the parties’
minor offspring. The court concluded,
correctly, that consent was not required for a protection order.
However, the court was of the view that this immunity is limited to
judges acting in their official capacity; it does not extend
to
retired judges unless proceedings arise from their judicial functions
as acting judges or from matters allocated to them during
active
service. I deal with this below.
Section 47
,
Judicial Independence, and the Bangalore Principles
[42]
Section 165 of the Constitution enshrines the
independence of the judiciary. This independence is not a personal
privilege for the
benefit of judges, but a cornerstone of
constitutional democracy for the benefit of all who seek justice. As
the Bangalore Principles
make clear, judicial independence is a
prerequisite to the rule of law and a fundamental guarantee of a fair
trial.
[43]
The Bangalore Principles further provide in
Principle 2.2:
"A judge shall be
independent in relation to society in general and in relation to the
particular parties to a dispute which
he or she has to adjudicate."
[44]
Section 47 gives effect to this constitutional and
international law imperative by providing a procedural filter that
protects judges
from unwarranted litigation that could compromise
their independence or distract them from their duties. As McCreath
and Koen argue:
Others
"The
jurisprudential crux of
section 47(1)
of the
Superior Courts Act is
embedded in the nature of the judicial office and its core value of
judicial impartiality. The procedural immunity which the section
affords South African judges is a mechanism for sparing them the
nuisance of having to deal with frivolous litigation, either as
defendant or as adjudicator... the doctrine of leave to sue seeks to
ensure that judges do not have to adjudicate claims which
resort
beyond the compass of their judicial capacity."
[24]
[45]
The first respondent, though retired, continues to
perform public service as Chairperson of a Commission of Inquiry. In
doing so,
she remains bound by her judicial oath and the ethical
standards that attach to her office. She is entitled to the same
protections
as a judge in active service, precisely because the
threats to judicial independence - vexatious litigation, personal
attacks,
and attempts to influence or intimidate - are no less real
in the commission context. The President's own concerns about
potential
"public criticism of the Commission" and a
"review attack on the appointment" underscore the very real
pressures
to which a judicial officer in this position is subject.
Application
to the Present Facts
[46]
The
applicants' founding affidavit demonstrates the very need for the
protection afforded by
section 47.
The first applicant makes serious
personal accusations against Justice Khampepe. At paragraph 36 of the
founding affidavit, he
refers to "my own personal reluctance to
the Chairperson given her leading role in writing and handing down
the two judgments
which led to my unfair, improper and irregular
detention without trial in July 2021." At paragraph 39, he
alleges "actual
bias" and "gross misconduct." At
paragraph 43, he refers to "the attempts to criminalise the
exposure of corruption."
At paragraph 84, he alleges "prima
facie violation of the provisions of
section 8
of PRECCA, which is a
criminal offence."
[25]
[47]
These are not mere administrative gripes; they are
direct attacks on the character and integrity of a retired judicial
officer.
They are precisely the kind of proceedings for which the
legislature, through
section 47
, intended to create a filter. The
first respondent is entitled to the protection of this provision, not
as a personal privilege,
but because the independence and dignity of
the judiciary as an institution require it.
[48]
The applicants' attempt to distinguish between
Justice Khampepe's role as a commissioner and her role as a judge is
illusory. The
attacks in the founding affidavit are directed at her
conduct as a judge of the Constitutional Court. The first applicant
complains
about judgments she wrote and her alleged bias in judicial
proceedings. This is precisely the kind of litigation
section 47
was
designed to screen.
[49]
The second applicant, Mr. Mbeki, advances similar
arguments about the non-applicability of
section 47
in these
proceedings. The fact that two former Presidents join forces, and in
the case of the first applicant, to attack a retired
judge of the
Constitutional Court, only underscores the need for the protective
mechanism of
section 47.
If such powerful litigants can take legal
action against a judge without prior consent, the potential for abuse
is manifest.
[50]
The current President's intervention, while
supportive of the concerns raised, does not alter this analysis. The
constitutional
duty of this Court is to apply the law.
Section 47
is
intended to protect the judiciary from all litigants, regardless of
their status or the perceived merit of their claims. The
fact that
the President now shares those concerns cannot cure a fundamental
jurisdictional defect.
[51]
In the
Corruption Watch case, it was held that a court has the power to
review the findings of a judicial commission of inquiry
because the
Commission had: (i) exceeded its terms of reference; (ii) committed
an error of law; (iii) breached the principles
of natural justice or
procedural fairness; and (iv) shown bias against certain
witnesses.
[26]
Although the
decisions and findings of a commission of inquiry may be reviewable,
it is ultimately the character of the decision
that "defines
what type of decision a review audits for rationality."
[27]
The Consequences of
Non-Compliance and Conclusion
[52]
It is common cause that the applicants did not
seek or obtain the Chief Justice's consent before instituting these
proceedings.
The provisions of
section 47
of the
Superior Courts Act are
couched in peremptory terms. They
required the applicants to first obtain the consent of the Chief
Justice. They did not do so.
Instead, the applicants submit that they
were not required to seek permission to cite Justice Khampepe as a
party to these proceedings
because she is not cited in her personal
capacity, but in nomine officio as the Chairperson of the Commission.
The authorities are clear as to the consequences
of such non-compliance. In the
Amalgamated
Lawyers Association
case, Sutherland
DJP held that proceedings instituted without the requisite consent
are "void ab initio" and that "there
is no room for
condonation." This was affirmed in
Mantashe
.
[53]
Consent must be obtained
before
proceedings are instituted. The requirement is jurisdictional and
peremptory. Once proceedings are launched without consent, they
are a
nullity from the start and cannot be validated.
[54]
I therefore conclude that Justice Khampepe, as a
retired judge of the Constitutional Court serving as Chairperson of a
Commission
of Inquiry, is a "judge" for purposes of
section
47.
The applicants were required to obtain the Chief Justice's
consent before instituting these review proceedings. They failed to
do so. This failure is fatal.
Leave to cite
in terms of
section 47(1)
must be obtained. This is so regardless of
whether the matter relates to either a judge’s judicial
functions and activities
or private affairs. It applies to civil
proceedings, as in this instance, intended to be instituted against
the judge in the judge's
personal or judicial capacities. This
requirement also applies with equal force to retired judges as it
does to other judges in
active service.
[55]
The proceedings are void
ab
initio
. As they were a nullity from the
start, this Court lacks the jurisdiction to entertain them. It
follows that the application must
be dismissed on this basis alone.
It is neither necessary nor competent for the Court to consider the
other grounds of review raised
by the applicants or the question of
urgency.
The Application for
Punitive and/or Personal Costs
[56]
Considering the conclusion that the proceedings
are a nullity, it is strictly unnecessary to consider the applicants'
prayer for
punitive and/or personal costs against the first
respondent. However, given the seriousness with which this prayer is
advanced,
and the fact that it is intertwined with the applicants'
attack on the first respondent's conduct, I make the following
observations.
[57]
At
paragraph 98 of the founding affidavit, the first applicant prays for
"punitive costs in the case of opposition, including
personal
costs against the first respondent." In his replying affidavit,
he elaborates on this prayer at paragraphs 92-93,
listing grounds
that include "the spurious and patently meritless technical
points taken" and "the intransigent
refusal to comply with
Rule 53(1)(b).
" In his heads of argument, counsel for the first
applicant submits at paragraphs 150-169 that exceptional
circumstances justify
a punitive costs order, relying on
Public
Protector v South African Reserve Bank.
[28]
Additionally, she must have “a taste of her own medicine"
with obvious reference to the punitive costs order made against
the
Public Protector.
[58]
The
irony of this application for costs
de
bonis propriis
on
a punitive scale cannot escape notice. The applicants seek punitive
and personal costs against a retired judge of the Constitutional
Court for, among other things, raising what they call "technical
points" in her defence. Yet the "technical point"
that
has succeeded in this case - the
section 47
point - is not a mere
technicality. It is a jurisdictional prerequisite that goes to the
very competence of this Court to hear
the matter. The fact that the
applicants chose to ignore this requirement and now seek to punish
the first respondent for raising
it is further evidence of the need
for the protective mechanism provided by
section 47.
In any event, it
can never be said that the first respondent’s conduct - in
raising what essentially amounts to a point of
law - materially
deviated from what is expected of a professional in her position,
such as to warrant censure in the form of a
de bonis propriis costs
order.
[29]
[59]
In
Public
Protector v South African Reserve Bank
,
the Constitutional Court held that a failure to produce a complete
record under
Rule 53
could attract punitive costs.
[30]
But that case presupposes that the court has jurisdiction to hear the
matter. Where, as here, the proceedings are a nullity from
the start,
there is no competent application in which a costs order can be made,
save for the costs of the jurisdictional point
itself.
[60]
Moreover, the applicants' attack on the first
respondent's conduct - including allegations of misconduct, bias, and
potential criminality
- is precisely the kind of allegations that
require the protection of
section 47.
A judge should not have to
defend herself against such serious accusations in open court without
the prior screening mechanism
provided by the legislature. To grant a
punitive costs order against a judge for invoking a statutory
protection designed for her
benefit would turn the purpose of
section
47
on its head and would seriously undermine, rather than reinforce,
public confidence in the judiciary.
[61]
The President's intervention, while commendable
and consistent with the duty of all organs of state to support the
judiciary as
articulated in the Bangalore Principles, does not alter
this conclusion. The President does not oppose the relief, but his
stance
cannot confer jurisdiction where none exists. His explanatory
affidavit, filed to assist the Court, is precisely the kind of
conduct
the Bangalore Principles encourage. It does not, however,
transform a nullity into a valid proceeding.
Costs of the
Jurisdictional Point
[62]
The general rule is that costs follow the result.
The respondents who raised the
Section 47
point have succeeded in
establishing that this Court lacks jurisdiction. The applicants are
therefore liable for the costs of the
first to sixth respondents in
relation to this point.
[63]
Given the complexities involved and the extensive
legal argument presented, I am satisfied that the employment of two
counsel was
justified. The costs should therefore include the costs
of two counsel where so employed. The matter is sufficiently complex
and
important to warrant costs on Scale C.
[64]
The prayer for punitive and/or personal costs
against the first respondent is refused. The first respondent was
entitled to raise
the
section 47
point, and her success on that point
demonstrates that it was not spurious or meritless.
[65]
Regarding the costs of the tenth respondent,
President Ramaphosa, he filed an explanatory affidavit and heads of
argument in a commendable
effort to assist the Court. So did the
eighth respondent, the NPA. This conduct is entirely consistent with
the duty of all organs
of state, as expressed in the Bangalore
Principles, to "better understand and support the judiciary."
They did not oppose
the relief and took no active part in the
litigation of the jurisdictional point. In the circumstances, it
would not be just and
equitable to mulct them with costs. No order is
made as to their costs.
Order
Zuma
vs
The
Others
[66]
In the result, the following order is made:
1.
The point
in
limine
raised by the first to fifth
respondents is upheld.
2.
The applicants' non-compliance with
section
47
of the
Superior Courts Act 10 of 2013
renders these proceedings a
nullity.
3.
The application is dismissed.
4.
The first and second applicants are
ordered, jointly and severally, the one paying the other to be
absolved, to pay the costs of
the first to sixth respondents, such
costs to include the costs of two counsel where so employed, on Scale
C.
5.
The applicants' prayer for punitive and/or
personal costs against the first respondent is refused.
6.
No order is made as to the costs of the
eighth and tenth respondents.
T P MUDAU
ACTING DEPUTY JUDGE
PRESIDENT OF THE HIGH COURT
GAUTENG DIVISION,
JOHANNESBURG
I agree
SELBY BAQWA
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the First Applicant:
Adv D Mpofu SC
Adv H Matlhape
Adv N Buthelezi
Adv K Monareng
Adv K Pama
Instructed
by:
KMNS Inc Attorneys
For
the Second Applicant:
Adv N Maenetje SC
Adv N Muvangua
Adv P Sokhela
Instructed
by:
Boqwana Burns Attorneys
For the First to Fifth
Respondents: Adv T Ngcukaitobi SC
Adv M Lengane
Instructed
by:
Seanego Attorneys Inc
For
the Sixth Respondent:
Adv H
Varney
Adv D Pillay
Instructed
by:
Webber Wentzel Attorneys
For
the Eighth Respondent:
Adv M Gwala SC
Adv Y S Ntloko
Instructed
by:
Office of the State Attorneys (Pretoria)
For
the Tenth Respondent:
Adv T
Bruinders SC
Adv I de Vos
Instructed
by:
Office of the State Attorneys (Pretoria)
Date of
Hearing:
16 March 2026 to 17 March 2026
Date of
Judgment:
30 March 2026
[1]
Ordinarily, the main and minority judgments are released
simultaneously. The main judgment is released in the interest of the
parties. The minority judgment has no impact on the substantive
outcome.
[2]
Act 10 of 2013.
[3]
Helen
Suzman Foundation v Judicial Service Commission
2018 (4) SA 1
CC, para 33.
[4]
Bertie
Van Zyl (Pty) Ltd and Another v Minister for Safety and Security and
Others
(CCT
77/08)
[2009] ZACC 11
;
2010 (2) SA 181
(CC) ;
2009 (10) BCLR 978
(CC)
(7 May 2009) at para 21
[5]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012
(4) SA 593
(SCA) ([2012]
2 All SA 262
;
[2012] ZASCA 13)
at para 18.
[6]
[2005] ZAGPHC 13
;
2005 (3) SA 567
(T)
.
[7]
2016 (4) SA 564
(GP).
[8]
Id
at
para 5.
[9]
Id
at
para 3.
[10]
[2021]
ZAGPPHC 14 (28 January 2021).
[11]
Id
at
para 32.
[12]
[2023] ZAGPJHC 1312
.
[13]
Id
at para 4.
[14]
(Case
No. 007263/2022) 12 October 2025.
[15]
Id
at
para 46.
[16]
Judges
Remuneration and Conditions of Employment Act 47 of 2001
[17]
Id
at
para 47.
[18]
[2025] ZAGPPHC 816 at para 29
.
[19]
Mantashe
at
paras 34-36.
[20]
[2018]
ZANWHC 32
at para 7.
[21]
[2017]
ZAWCHC 161
at para 5.
[22]
2021
(4) SA 559
ECE para 48-49.
[23]
Act 116 of 1998.
[24]
MCCREATH,
H and KOEN, R.
Defending
the absurd: the Iconoclast's guide to
Section 47(1)
of the
Superior
Courts Act 10 of 2013
PER/PELJ 2014 (17)5 at p 1817.
[25]
Prevention and Combatting of Corrupt Activities Act 12 of 2004.
[26]
Corruption
Watch and Another v Arms Procurement Commission and Others
2020 (2)
SA 165
(GP) ("Corruption Watch"), paras 5-10.
[27]
Masuku
v Special Investigating Unit 2021 JDR 0720 (GP) ("Masuku"),
para 18.
[28]
2019
(6) SA 253
(CC).
[29]
Badenhorst
N O v Manyatta Properties Close Corporation and Others
(Case no 049/2024)
[2025] ZASCA 194
(17 December 2025)
[30]
Id
at
para 237.