CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 90/26
In the matter between:
JACOB GEDLEYIHLEKISA ZUMA First Applicant
THABO MVUYELWA MBEKI Second Applicant
and
CHAIRPERSON OF THE JUDICIAL COMMISSION
OF INQUIRY INTO ALLEGATIONS REGARDING
EFFORTS OR ATTEMPTS HAVING BEEN
MADE TO STOP THE INVESTIGATION
OR PROSECUTION OF TRUTH AND
RECONCILIATION COMMISSION
CASES First Respondent
SECRETARY OF THE JUDICIAL COMMISSION OF
INQUIRY INTO ALLEGATIONS REGARDING
EFFORTS OR ATTEMPTS HAVING BEEN
MADE TO STOP THE INVESTIGATION
OR PROSECUTION OF TRUTH AND
RECONCILIATION COMMISSION
CASES Second Respondent
ISHMAEL SEMENYA N.O. Third Respondent
FRANS KGOMO N.O. Fourth Respondent
ANDREA GABRIEL N.O. Fifth Respondent
CALATA GROUP Sixth Respondent
NATIONAL PROSECUTING AUTHORITY Seventh Respondent
MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT Eighth Respondent
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA Ninth Respondent
Neutral citation: Zuma and Another v Chairperson of the Judicial Commission of
Inquiry into Allegations Regarding Efforts or Attempts Having
Been Made to Stop the Investigation or Prosecution of Truth and
Reconciliation Commission Cases and Others [2026] ZACC 34
Coram: Mlambo DCJ, Dambuza J, Kollapen J, Majiedt J, Mathopo J,
Mhlantla J, Nuku AJ, Rogers J and Theron J
Judgments: Theron J (first judgment): [1] to [153]
Nuku AJ (second judgment): [154] to [190]
Rogers J (third judgment): [191] to [202]
Heard on: 29 June 2026
Decided on: 31 August 2026
Summary: Superior Courts Act 10 of 2013 — section 47(1) — judge of a
Superior Court — judicial independence — consent to sue
Review application — Promotion of Administrative Justice Act
3 of 2000 — principle of legality — grounds of review —
rationality — bias
Recusal application — reasonable apprehension of bias
ORDER
On application for leave to appeal directly from the High Court of South Africa,
Gauteng Division, Johannesburg (High Court):
1. Leave to appeal directly is granted.
3
2. The appeal is partially upheld. The order of the High Court is set aside
and replaced with the following:
“(a) The point in limine raised by the first to fifth respondents in respect
of section 47(1) of the Superior Courts Act 10 of 2013 is dismissed.
(b) The application to review the ruling, delivered on 30 January 2026
by the Chairperson of the Judicial Commission of Inquiry into
Allegations Regarding Efforts or Attempts Having Been Made to
Stop the Investigation or Prosecution of Truth and Reconciliation
Commission Cases dismissing the recusal applications, is
dismissed.”
3. The seventh respondent’s application for condonation for the late filing
of the explanatory affidavit is refused with costs.
4. Except for the order in paragraph 3, each party is to pay their own costs
in the High Court and in this Court.
JUDGMENT
THERON J (Mlambo DCJ, Mathopo J and Mhlantla J concurring):
“The Commission operates at the intersection of profoundly significant and competing
interests: the Calata Group and other victims seeking long -delayed truth and
accountability; former Presidents whose personal and reputational interests are
engaged; and t he foundational constitutional values of national unity, reconciliation,
and the rule of law that underpinned the [Truth and Reconciliation Commission] ’s
restorative justice framework. Maintaining public confidence in such a process
requires scrupulous institutional impartiality. Any reasonable perception that the
Chairperson’s continued involvement may compromise that impartiality risks
THERON J
4
undermining the Commission’s credibility and rendering its work vulnerable to lasting
doubt.”1
Introduction
[1] This matter consists of two urgent applications. The first is an application for
leave to appeal directly against the order and judgment of the High Court of
South Africa, Gauteng Division, Johannesburg (High Court). The second is an
application for direct access. These applications involve the same parties, concern
similar factual matrices and overlap in the relief sought. The central questions to be
determined address the interpretation of section 47(1) of the Superior Courts Act2 (Act)
and the review of a recusal decision . The applicants are two former Presidents ,
Mr Jacob Gedleyihlekisa Zuma and Mr Thabo Mvuyelwa Mbeki.3
[2] The first respondent is Commissioner Sisi Khampepe, who was a Justice of this
Court from 2009 until her retirement in 2021. In May 2025, she was appointed by the
ninth respondent, President Matamela Cyril Ramaphosa, to serve as the Chairperson of
the Judicial Commission of Inquiry into Allegations Regarding Efforts or Attempts
Having Been Made to Stop the Investigation or Prosecution of Truth and Reconciliation
Commission Cases (Commission). The Commission has two other commissioners,
Commissioner Frans Kgomo, who retired as the Judge President of the High Court of
South Africa, Northern Cape Division in September 2017, and Commissioner Andrea
Gabriel SC, an advocate . They are cited as the fourth and fifth respondents ,
respectively. The second respondent is the Secretary of the Commission. The third
respondent is Advocate Ishmael Semenya SC, the Commission’s Chief Evidence
Leader. The first, third, fourth and fifth respondents are all cited nomine officio (in their
official capacities). The first to fifth respondents are referred to as the Commission
Respondents.
1 Zuma v Chairperson of the Commission Commissioner Sisi Khampepe (minority) [2026] 2 All SA 684 (GJ)
(High Court minority) at para 184.
(High Court minority) at para 184.
2 10 of 2013.
3 Given the significant overlap in the applicants’ pleadings and submissions, I refer to them collectively, save for
where it is necessary to differentiate.
THERON J
5
[3] The sixth respondent is the Calata Group, a collective term referring to
twenty-five families who have been seeking the prosecution of apartheid-era crimes that
involved the torture and killing of their family members. The seventh and eighth
respondents are the National Prosecuting Authority (NPA) and the Minister of Justice
and Constitutional Development (Minister), respectively. Th e two applications are
opposed by the Commission Respondents and the Calata Group.4
Background
Establishment of the Commission
[4] The present application s stem from earlier applications for
Commissioner Khampepe to recuse herself from the Commission. The broader context
of the Commission and its significance to South Africa’s democratic and constitutional
transformation, however, form the critical backdrop against w hich this case must be
viewed. In our still-maturing constitutional democracy, we continue to grapple with the
legacies of our troubled past and the compromises of the negotiated transition. The
navigation of these intricacies requires utmost care and integrity, constant attentiveness
to their impact on both an individual and a societal level and an unwavering
commitment to the judicious exercise of public power.
[5] The Commission is one example of this navigation. Its origin traces back to the
Truth and Reconciliation Commission (TRC), an institution integral to South Africa’s
democratic transition. The TRC was designed to, among other things, establish as
complete a picture as possible of the gross human rights violations that took place
during apartheid ; facilitate the granting of amnesty in appropriate cases ; restore the
dignity of victims and survivors; and promote national unity and reconciliation through
truth and justice. Plainly, its significance cannot be overstated.
4 The NPA has filed an explanatory affidavit and an application for the condonation for the late filing thereof. I
will discuss these filings later in this judgment.
THERON J
6
[6] As part of its process, the TRC, and its Amnesty Commi ttee in particular ,
reviewed and decided applications for amnesty. The handling of these applications was
governed by the Promotion of National Unity and Reconciliation Act5 and premised on
a negotiated compromise: perpetrators who made full disclosure could obtain amnesty,
while those who did not would face legal consequences. Indeed, while the TRC granted
amnesty to many who applied, in a considerable number of cases, amnesty was refused.
Beginning in 1998, the TRC referred cases to the NPA for further investigation and
possible prosecution. I refer to the se cases as the TRC cases. The continu ed
investigation and possible prosecution of the TRC cases fell primarily on the shoulders
of two state functionaries: the NPA and the South African Police Service (SAPS).
[7] In the ensuing years, however, there was little progress in the prosecution of the
TRC cases. This silence and inaction have led to public dissatisfaction. In particular,
victims and survivors of apartheid-era crimes, as well as their families, have long sought
justice and accountability. Worsening their frustration were concerns that the State’s
failure to prosecute the TRC cases may be the result of political interference. In
Rodrigues, the High Court found:
“What occurred in the period from about 2003 until 2017 was that all investigations
into TRC cases and other crimes of the past were stopped as a result of an executive
decision taken at a high level that purported to interfere with the [NPA]’s prosecutorial
decision making.
The [National Director of Public Prosecutions] describes this interference as follows:
‘The only conclusion to arrive at is that the delay in prosecuting . . . was as a
result of the political interference and the “severe political constraints” to
which the [National Director of Public Prosecutions] was subjected.’
There was thus what can only be described as high -level executive interference on
There was thus what can only be described as high -level executive interference on
investigating and prosecuting TRC crimes and other crimes of the past in the period
from 2003 until about 2017.”6
5 34 of 1995.
6 Rodrigues v National Director of Public Prosecutions 2019 (2) SACR 251 (GJ) at paras 21-3.
THERON J
7
[8] There can be no question about the seriousness of these alleged influences. On
17 January 2025, the Calata Group launched an application in the High Court of
South Africa, Gauteng Division, Pretoria (Calata Application). They primarily alleged
that the Executive, the NPA, the SAPS and other state organs colluded or acquiesced in
the suppression of the TRC cases. Settlement discussions ensued. On 29 May 2025,
President Ramaphosa, in a proclamation, established the Commission “to investigate
allegations of whether efforts or attempts were made to stop the investigation or
prosecution of [the TRC] cases”. 7 According to its Terms of Reference, the
Commission—
“must, in relation to the period since 2003, inquire into, make findings, report on and
make recommendations concerning the following, guided by the Constitution, relevant
legislation, policies and guidelines—
1.1 whether, why, and to what extent and by whom, efforts or attempts
were made to influence or pressure members of the [SAPS] or the
[NPA] to stop investigating or prosecuting TRC cases;
1.2 whether any members of the [SAPS] or the [NPA] improperly colluded
with such attempts to influence or pressure them; and
1.3 whether any action should be taken by any Organ of State, including
possible further investigations to be conducted or prosecutions to be
instituted, where appropriate, of persons who may have acted
unlawfully by—
1.3.1 attempting to influence or pressure members of the [SAPS] or
the [NPA] to stop investigating or prosecuting TRC cases; or
1.3.2 members of the [SAPS] or the [NPA] colluded with or
succumbed to attempts to influence or pressure such members
to stop investigating or prosecuting TRC cases; and
1.4 whether, in terms of the law and fairness, the payment of any amount
in constitutional damages to any person is appropriate.”8
7 Terms of Reference of the Judicial Commission of Inquiry to Inquire into Allegations Regarding Efforts or
Attempts Having Been Made to Stop the Investigation or Prosecution of Truth and Reconciliation Commission
Cases; Proc R264 GG 52749 of 29 May 2025 (Terms of Reference).
8 Id at para 1.
THERON J
8
[9] As the history of the Commission and its Terms of Reference elucidate, its
establishment represents the culmination of demands over decades for justice in the
TRC cases. The Commission serves to unearth the truth behind the alleged suppression
of the TRC cases and bring our society one step further along in its transformation from
a past marked by systematic oppression and impunity to a future premised on
democracy, accountability and human rights.
[10] When the Commission was established, its term was to end on 29 May 2026.
This term has since been extended to 18 December 2026. The Commission’s
Regulations afford it the power to “determine its own procedures” . 9 The Regulations
also confer on Commissioner Khampepe the authority to “appoint . . . persons and
officers as may be required to assist the Commission in carrying out its functions”. 10
Pursuant to these regulations, Commissioner Khampepe promulgated the
Commission’s Rules on 29 August 2025.11
[11] In September 2025, the Commission, pursuant to rule 3.3 of its Rules,12 served
notices informing the applicants that they may be implicated persons and invit ed them
to participate in the Commission’s proceedings (Rule 3.3 Notices) . After a series of
exchanges, on 3 December 2025, President Zuma’s attorneys sent a letter to the
Commission demanding “the immediate recusal of [Commissioner Khampepe]”. In
response, Commissioner Khampepe directed President Zuma to file a n application for
9 Judicial Commission of Inquiry to Inquire into Allegations Regarding Efforts or Attempts Having Been Made
to Stop the Investigation or Prosecution of Truth and Reconciliation Commission Cases: Regulations; Proc R 278
GG 53183 of 19 August 2025.
10 Id at para 4.
11 Rules of the Judicial Commission of Inquiry to Inquire into Allegations Regarding Efforts or Attempts Having
Been Made to Stop the Investigation or Prosecution of Truth and Reconciliation Commission Cases ; Proc R 285
GG 53251 of 29 August 2025.
GG 53251 of 29 August 2025.
12 Rule 3.3 states:
“If the Commission’s Evidence Leader intends to present to the Commission a witness, whose
evidence implicates or may implicate another person, it must, through the Secretary of the
Commission, notify that person (‘implicated person’) in writing within a reasonable time before
the witness gives evidence.”
THERON J
9
her recusal, which he did on 15 December 2025. Four days later, President Mbeki
brought a similar application, also seeking Commissioner Khampepe’s recusal. These
applications are referred to collectively as the recusal applications.
[12] In the recusal applications, the applicants called for Commissioner Khampepe’s
recusal on various grounds. While some grounds have since been abandoned, the
grounds that remain relevant are largely grouped under two categories:
Commissioner Khampepe’s occupational history and her handling of allegations related
to Advocate Semenya.
[13] On occupational history, the applicants raised concerns surrounding
Commissioner Khampepe’s two prior roles. First, she served as a Commissioner for
the TRC between 1995 and 2001 and specifically as a member of the TRC’s Amnesty
Committee between 1996 and 2001 . The applicants alleged that , at the TRC ,
Commissioner Khampepe—
(a) assessed and determined applications for amnesty;
(b) participated in the refusal of amnesty to the alleged killers of Richard and
Irene Motasi13 and in the consideration of amnesty applications relating
to the kidnapping of the “Pebco Three” ,14 all of whose family members
were parties to the Calata Application and are interested parties before the
Commission;
(c) was part of the panel that refused amnesty applications brought by 37
members of the African National Congress (“ANC 37”), 15 including the
applicants and others who are, or may become, implicated persons before
the Commission; and
13 Richard Motasi was a policeman who was killed alongside his wife , Irene Motasi, by members of the security
police.
14 Sipho Samuel Hashe, Qaqawuli Godolozi and Twasile Champion Galela, collectively known as the
“Pebco Three”, were kidnapped by the Apartheid Security Branch.
15 The “ANC 37” includes the applicants and other prominent members of the A frican National Congress, who
previously served or currently serve in the Executive.
THERON J
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(d) was involved in the writing of the TRC’s findings and recommendations
and that, beginning in 1998, the TRC recommended that the NPA
investigate and possibly prosecute cases where the TRC denied amnesty –
these cases form part of the TRC cases.
[14] The second role of concern to the applicants was that, between September 1998
and December 1999, Commissioner Khampepe served as a Deputy National Director
of Public Prosecutions (Deputy NDPP), the second highest prosecutorial position within
the NPA. The applicants alleged that:
(a) Her tenure at the NPA overlapped with the establishment and
operationalisation of the Human Rights Investigation Unit (HRIU).
(b) The HRIU’s mandate was, among other things, to review records of
amnesty applications before the TRC, investigate apartheid -era human
rights violations and make recommendations on the possible prosecution
of the TRC cases.
(c) Commissioner Khampepe played a role in the HRIU, including by
advising the then -National Director of Public Prosecutions (NDPP),
Mr Bulelani Ngcuka, on the approach in the TRC cases, and by working
with Judge Vincent Saldanha,16 who was the head of the HRIU in 1999 .
Both Mr Ngcuka and Judge Saldanha are witnesses before the
Commission.
(d) Had she not been a member of the Commission,
Commissioner Khampepe would herself be a competent witness before
the Commission.
[15] The applicants argued that , collectively, these roles placed
Commissioner Khampepe in close institutional and decisional proximity to the very
historical record, evaluative judg ements and prosecutorial consequences that form the
essential backdrop to the Commission’s present mandate. They asserted that these roles
16 Judge Saldanha is a judge of the High Court of South Africa, Western Cape Division, Cape Town.
THERON J
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are “an obvious disqualifier” and that a reasonable observer would apprehend that
Commissioner Khampepe might have an institutional interest in validating the propriety
of decisions made during her tenure in either role. For these reasons, her previous roles
give rise to a reasonable apprehension of bias.
[16] Additionally, the applicants alleged that Commissioner Khampepe endorsed an
irregular private agreement between Advocate Semenya and Advocate Howard Varney,
lead counsel for the Calata Group at the Commission. This agreement was said to have
contravened rule 3.1 of the Commission’s Rules by allowing Advocate Varney to lead
evidence of the Calata Group’s witnesses.17
[17] It was also alleged that Commissioner Khampepe condoned a breach of her
directive by Adv ocate Semenya. In September 2025, the Calata Group informed
Commissioner Khampepe of concerns regarding a possible conflict of interest involving
Advocate Semenya, which stemmed from his prior involvement in the Nkadimeng
case,18 a lawsuit surrounding an NDPP prosecuting policy titled “Prosecuting Policy
and Directives Relating to the Prosecution of Offences Emanating from Conflicts of the
Past and Which Were Committed on or Before 11 May 1994” (Prosecution Policy) .
Advocate Semenya appeared for the NDPP and the Minister in that case. On
19 September 2025, Commissioner Khampepe responded that while she “make[s] no
decision” on these concerns, she was “minded going with” a solution that would
preclude Advocate Semenya from questioning any NPA officials on the Prosecution
Policy. On 13 November 2025, however, Advocate Semenya interviewed Dr Silas
Ramaite SC, a former Acting NDPP. The interview traversed the Prosecution Policy,
among other topics. The allegation was that Commissioner Khampepe overlooked this
breach of her directive, thereby giving rise to a reasonable apprehension of bias on her
part.
17 Rule 3.1 states:
part.
17 Rule 3.1 states:
“Subject to anything to the contrary contained in these Rules or to the Chairperson’s directions
in regard to any specific witness, the Commission’s Evidence Leader bears the overall
responsibility to present the evidence of witnesses to the Commission.”
18 Nkadimeng v National Director of Public Prosecutions [2008] ZAGPHC 422.
THERON J
12
[18] The final allegation in respect of Advocate Semenya related to how
Commissioner Khampepe handled the application for his recusal as the Commission’s
Chief Evidence Leader (Semenya recusal application). A fter the NPA and the
Department of Justice and Constitutional Development filed the Semenya recusal
application, Commissioner Khampepe allegedly acted improperly by giving
Advocate Semenya legal advice in the form of coaching him by pointing out potential
pitfalls in the application and proposing instructions for him to give to his legal
representative. Presiden t Zuma said that he had obtained evidence of secret
communications between Commissioner Khampepe and Advocate Semenya from a
whistleblower and contended that these communications constituted actual bias . The
Commission received both oral and written submissions on the Semenya recusal
application, which was dismissed on 4 December 2025.
[19] On 16 January 2026, all three commissioners heard argument on the recusal
applications in respect of Commissioner Khampepe. Two weeks later,
Commissioner Khampepe delivered a ruling on these applications (recusal ruling).
[20] In her ruling, Commissioner Khampepe set out the applicable legal framework,
stating that recusal is warranted where there is either actual bias or a reasonable
apprehension of bias. Relying on this Court’s judgments in SARFU,19 Masuku20 and
Bernert, 21 Commissioner Khampepe reiterated that the test for a reasonable
apprehension of bias is objective and entails a double requirement of reasonableness:
both the notional person apprehending the alleged bias and the apprehension itself must
be reasonable. Given the strong presumption of judicial impartiality, the duty on
judicial officers to sit in matters when not recused and their training and experience, she
further emphasised that a party seeking the recusal of a judicial officer must do so with
further emphasised that a party seeking the recusal of a judicial officer must do so with
19 President of the Republic of South Africa v South African Rugby Football Union [1999] ZACC 9; 1999 (4) SA
147 (CC); 1999 (7) BCLR 725 (CC).
20 South African Human Rights Commission obo South African Jewish Board of Deputies v Masuku [2022]
ZACC 5; 2022 (4) SA 1 (CC); 2022 (7) BCLR 850 (CC).
21 Bernert v Absa Bank Ltd [2010] ZACC 28; 2011 (3) SA 92 (CC); 2011 (4) BCLR 329 (CC).
THERON J
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“cogent or convincing evidence” 22 and articulate “a logical connection between the
matter and the feared deviation”.23
[21] Commissioner Khampepe found that her prior institutional roles did not give rise
to a reasonable apprehension of bias on the basis that the applicants had failed to
articulate a logical connection between these roles and the Commission’s present
investigation. She held that the allegations by the applicants were “based simply on
generalised suspicions and claims, with no attempt to state what [she] did or when
during those times, that is relevant to the work of [the] Commission”.24 She reasoned
that the subject matter of the Commission’s work, being “efforts or attempts having
been made to stop the investigation or prosecution of TRC cases ” were not “pertinent
before the TRC’s Amnesty Committee or indeed at the [NPA] during [her] tenure
there”.25 Finally, she relied on the Commission’s Terms of Reference, which specify
that the Commission must conduct its inquiry “in relation to the period since 2003” .26
She found that , as her roles in the NPA and the TRC ended in 1999 and 2001,
respectively, an apprehension of bias based on these roles would not be reasonable.27
[22] Commissioner Khampepe also found that President Zuma provided “no
evidence whatsoever of [the alleged improper] communications” between her and
Advocate Semenya.28 She reasoned that given the nature of the Commission, frequent
communications between her and the evidence leaders were necessary.
Commissioner Khampepe found that she was empowered to endorse the
evidence-leading arrangement pursuant to rule 3.1 of the Commission’s Rules . She
further held that the applicants had failed to establish any relevant connection between
22 South African Commercial Catering and Allied Workers Union v Irvin & Johnson Limited Seafoods Division
Fish Processing [2000] ZACC 10; 2000 (3) SA 705 (CC); 2000 (8) BCLR 886 (CC) (SACCAWU) at para 12.
23 Ex Parte Goosen 2020 (1) SA 569 (GJ) (Goosen) at para 29, endorsed in Masuku above n 20 at para 69.
24 Recusal ruling at para 52.
25 Id at para 45.
26 Id at para 56.
27 Id at paras 56-8.
28 Id at para 70.
THERON J
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Advocate Semenya’s participation in proceedings related to the Prosecution Policy and
her ability to apply her mind impartially to the Commission’s work. 29
[23] Commissioner Khampepe additionally found that the applicants unreasonably
delayed in filing the recusal applications. She reasoned that the Commission’s Terms
of Reference, her position as a Commissioner and her employment history were public
knowledge on or before 29 May 2025. 30 The applicants, however, made no effort to
seek her recusal until December 2025. As the applicants did not proffer satisfactory
explanations for this delay, she held that the recusal applications fell to be “non-suited
on this ground alone”.31
Litigation history
High Court proceedings
[24] The applicants approached the High Court on an urgent basis to review the
recusal ruling (review application). They asked the High Court to declare the recusal
ruling unconstitutional and invalid, set aside that ruling and order the removal of
Commissioner Khampepe from the Commission . In addition, President Zuma sought
to compel the discovery of records, including, among other things , certain
correspondence between Commissioner Khampepe and Advocate Semenya related to
the Semenya recusal application.
[25] President Ramaphosa filed an explanatory affidavit in the High Court. In it, he
stated that when he appointed Commissioner Khampepe to the Commission, he was
unaware of her prior involvements with the TRC and the NPA. He went on to state that
he “would not have appointed her” had he been aware of these institutional
involvements when he established the Commission.32
29 Id at paras 103-6.
30 Id at paras 112-13.
31 Id at paras 134 and 140.
32 Zuma v Chairperson of Commission Commissioner Sisi Khampepe (majority) [2026] 2 All SA 668 (GJ) (High
Court majority) at para 11.
THERON J
15
[26] In their answering affidavit at the High Court, the Commission Respondents
denied Commissioner Khampepe’s involvement in the HRIU. Further, the Commission
Respondents and the Calata Group raised a preliminary objection that the High Court
lacked jurisdiction over the review application. This was so, they contended, because
the applicants did not comply with the peremptory provisions of section 47 of the Act.
That section reads:
“47 Issuing of summons or subpoena in civil proceedings against judge
(1) 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.
(2) Where the issuing of a summons or subpoena against a judge to appear in a
civil action has been consented to, the date upon which such judge must attend
court must be determined in consultation with the relevant head of court.”
It is common cause that the applicants neither sought nor obtained the consent of the
Chief Justice or any Judge President prior to instituting the review application.
High Court majority
[27] The Full Court produced two judgments in a bifurcated approach , with the
majority judgment delivered on 30 March 2026 and the minority on 21 April 2026 –
some three weeks apart. In ordinary practice, even when a matter is before the
High Court on an urgent basis, all judgments are delivered together . This practice
should not be encouraged.
[28] Two of the three members of the Full Court dismissed the review application on
the point in limine (at the threshold) based on non-compliance with section 47(1) and
THERON J
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did not reach the merits of the review application or the recusal applications.33 The
majority held that the purpose of section 47 is to provide “a procedural filter that
protects judges from unwarranted litigation that could compromise their independence
or distract them from their duties”.34
[29] The majority held that section 47 applies to civil proceedings, including review
applications. It reasoned that the section’s language is intended to cover all civil
proceedings instituted by way of summons or notice of motion, with the only exception
being an “application made in terms of the Domestic Violence Act”. 35 The review
application, having been instituted by a notice of motion and listing
Commissioner Khampepe as a respondent, thus fell within the ambit of section 47(1).
The majority relied on FUL, which held that “[r]eview proceedings are civil
proceedings”.36
[30] The majority embraced an expansive definition of section 47 that applies to
judges in both their judicial and personal capacities, including actions arising from their
personal interactions. It also adopted the reasoning in FUL that section 47 does not
distinguish between active and retired judges and applies equally to retired judges who
continue to perform judicial services.37 The High Court in NP also held that section 47
applies to retired judges if proceedings against them arise from their judicial functions.38
[31] The majority approved of the approach adopted in FUL in its inquiry on whether
chairing a commission of inquiry falls under judicial service. In FUL, the High Court
relied on the definition of “service” in the Judges’ Remuneration and Conditions of
33 Id at paras 54-5.
34 Id at para 44.
35 Id at para 21, referring to the Domestic Violence Act 116 of 1998 (Domestic Violence Act).
36 Freedom Under Law v Motata [2021] ZAGPPHC 14 at para 32. See High Court majority above n 32 at para 25.
37 High Court majority id.
38 NP v LP 2021 (4) SA 559 (ECG) at para 49.
THERON J
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Employment Act39 (Remuneration Act), which include s “service as a chairperson or a
member of a commission as contemplated in the Commissions Act [8 of 1947] ”,40 to
support its conclusion that section 47(1) extends to retired judges.41 On this point, the
majority noted that the High Court in Memela 42 found that the chairperson of the
State Capture Commission 43 was not contemplated in section 47(1). However, i t
declined to follow Memela, finding that Memela failed to engage with binding
precedent. Instead, the majority supported the rationale emerging from Mantashe44 that
Memela was “clearly wrong” for failing to take into account the definition of service in
the Remuneration Act.45 The majority further noted that in her role at the Commission,
Commissioner Khampepe remains bound by her judicial oath and the ethical standards
that attach to her judicial office. For these reasons, the majority held that section 47(1)
applies to Commissioner Khampepe and that the applicants were required to seek the
consent of the Chief Justice.
[32] The majority went on to find that the consent requirement in section 47(1) is a
jurisdictional prerequisite, and that non-compliance therewith renders subsequent
proceedings void ab initio (from the outset). According to the majority , a litigant’s
failure to comply with this requirement cannot be condoned . Therefore, the majority
held that the applicants’ non-compliance with section 47(1) was fatal and dismissed the
review application. The majority deemed it unnecessary to decide the merits of
President Zuma’s interlocutory application, as the dismissal of the review application
rendered it moot.
39 47 of 2001.
40 Section 1 of the Remuneration Act.
41 FUL above n 36 at para 25. See also High Court majority above n 32 at paras 25 and 27.
42 Memela v Chairperson of the State Capture Commission of Inquiry [2025] ZAGPPHC 816.
42 Memela v Chairperson of the State Capture Commission of Inquiry [2025] ZAGPPHC 816.
43 Judicial Commission of Inquiry to Inquire into Allegations of State Capture, Corruption and Fraud in the Public
Sector Including Organs of State.
44 Mantashe v Zondo N .O., unreported judgment of the High Court of South Africa , Gauteng Division,
Johannesburg, Case No. 007263/2022 (12 October 2025).
45 High Court majority above n 32 at paras 34-6.
THERON J
18
High Court minority
[33] The minority judgment parted ways with the majority on its conclusions on
section 47(1). Additionally, it found that the recusal ruling was unlawful. On remedy,
the minority would have set aside that ruling and ordered the recusal of
Commissioner Khampepe.
[34] The minority found that the majority “adopt[ed] an unduly formalistic reading
of section 47” by “overemphasis[ing] the protective purpose of section 47(1) while
marginalising its textual limits and ignoring the unintended consequences that flow
from extending the consent requirement to recusal reviews”. 46 According to the
minority, the purpose of section 47 is twofold:
“First, it is to protect judges against frivolous and vexatious litigation in which they are
targeted due to their work on the bench. Second, to ensure that appearance by a judge
in court does not disrupt court proceedings.”47
[35] The minority found that the nature of the proceedings in this case was dispositive
of the applicability of section 47(1). Recusal proceedings, so reasoned the minority, are
“never brought as new proceedings” but “always [arise] from proceedings that are
underway”.48 Ordinarily, the recusal of a judge is sought in proceedings where the
judge is not cited as a party. Where the recusal order is not granted, the aggrieved party
is entitled to appeal the decision and the judge is not cited in the appeal proceedings.
The minority reasoned that recusal applications are aimed at ensuring the fairness of the
proceedings – not at lodging claims against judges.
[36] By analogy, the minority viewed the recusal application s as objections to the
Commission’s jurisdiction, which was asserted by the Rule 3.3 Notices. When the
applicants brought these applications before the Commission, they were not launching
46 High Court minority above n 1 at paras 23-4.
47 Id at para 33.
48 Id at para 40.
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19
new proceedings as contemplated in section 47(1). The minority reasoned further that
the subsequent review application in the High Court did “not morph into new
proceedings as foreshadowed in section 47(1)”.49 It was rather “akin to an appeal
against a decision by a judge refusing to recuse herself”. 50 To distinguish the review
application from an appeal would be to “permit an objection during secondary
proceedings and place a hurdle that potentially insulates recusal decisions from judicial
scrutiny”.51 The minority saw this distinction as “manifestly at odds with the purpose,
context and language of the provision”. 52 Accordingly, the minority concluded that
section 47(1) does not apply to an application to review a recusal ruling.
[37] After dispensing with the preliminary section 47(1) objection, the minority
evaluated the merits of the review application. One of the grounds on which the
applicants challenged the recusal ruling was that it was decided by
Commissioner Khampepe alone, although all three commissioners heard oral argument
on it. Relying on SARFU, the applicants argued that the disqualification of a judicial
officer on the basis of a reasonable apprehension of bias requires collective
decision-making where possible. The minority agreed and reasoned that the
Commission’s Rules can neither contravene settled law nor clothe
Commissioner Khampepe with authority not sourced in law. Thus, the minority found
that Commissioner Khampepe lacked the power to decide the recusal application s
unilaterally, and the recusal decision was ultra vires (beyond authority).
[38] Relying on Trencon,53 the minority deemed substitution to be a just and equitable
remedy. On t he substantive grounds of the recusal applications and in respect of
Commissioner Khampepe’s past institutional roles, the minority found that past
associations could create a reasonable apprehension of bias in the following recognised
49 Id at para 48.
50 Id.
51 Id.
52 Id.
49 Id at para 48.
50 Id.
51 Id.
52 Id.
53 Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd [2015] ZACC 22;
2015 (5) SA 245 (CC); 2015 (10) BCLR 1199 (CC).
THERON J
20
situations: “where the subject matter of the litigation arises from the past role, or where
the judge previously advised a party in relation to the matter”. 54 Under this test, the
minority concluded that these roles were sufficient to raise a reasonable apprehension
of bias.
[39] The minority was unpersuaded by the temporal boundary argument because the
Rule 3.3 Notices traced suspected interferences back to the period of
Commissioner Khampepe’s involvement in the NPA . Given the Commission’s focus
on the prosecutorial treatment of the TRC cases , the minority found that the subject
matter of the Commission’s work “traverses the same prosecutorial history and the same
body of TRC-related cases that formed the context of [Commissioner Khampepe’s] past
roles”.55 It t hus found the distinction between the Commission’s mandate and the
prosecution of the TRC cases to elevate form over substance . The minority also
accorded considerable weight to the fact that Mr Ngcuka and Ju dge Saldanha, both
former colleagues of Commissioner Khampepe during her time at the NPA, are
witnesses before the Commission. It opined that these fact s rendered
Commissioner Khampepe a competent witness in the same Commission that she is
chairing. It concluded that the subject matter of the Commission does arise from
Commissioner Khampepe’s prior roles.
[40] The minority found that President Zuma had “failed to establish any factual
substratum capable of sustaining a finding of actual bias” based on the allegation that
Commissioner Khampepe improperly coached or assisted Adv ocate Semenya. 56 It
further found that Commissioner Khampepe’s approval of the witness leading
arrangement could not , viewed in isolation, justify a finding of a reasonable
apprehension of bias. Additionally, the minority found that Commissioner Khampepe’s
response to the Calata Group on 19 September 2025 about Advocate Semenya’s
response to the Calata Group on 19 September 2025 about Advocate Semenya’s
involvement in proceedings related to the Prosecution Policy did not amount to a
54 High Court minority above n 1 at para 130.
55 Id at paras 131-2.
56 Id at para 149.
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21
binding directive. Consequently, she did not sanction any breach of her own directive.57
In totality, the minority found that although Commissioner Khampepe’s acts pertaining
to these allegations “were capable of criticism”, they did not in and of themselves
“justify a finding of bias”. 58 Finally, the minority found that the delay in bringing the
recusal applications could be overlooked, because “the seriousness of the issues raised –
particularly [Commissioner Khampepe’s] prior institutional roles – carries decisive
weight”.59
Issues for determination
[41] The following issues arise for determination:
(a) whether this matter engages this Court’s jurisdiction and , if so, whether
leave to appeal directly to this Court should be granted;
(b) whether the applicants, pursuant to section 47(1) of the Act, had to seek
the consent of the Chief Justice before filing the review application in the
High Court;
(c) if the answer to (b) is no , whether this Court should entertain the merits
of the review application;
(d) if the answer to (c) is yes, whether the review application should succeed;
and
(e) whether this Court should grant condonation for the NPA’s late filing of
its explanatory affidavit.
Jurisdiction and direct appeal
[42] The question whether the applicants had to seek the consent of the Chief Justice
prior to instituting the review application turns on the interpretation of section 47(1) of
the Act. While not all questions of statutory interpretation engage this Court’s
57 Id at para 159.
58 Id at para 162.
59 Id at para 170.
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22
jurisdiction,60 those that turn on the interpretation of a statute through the prism of
constitutional rights, values and principles are constitutional questions. 61 Here, the
interpretation of section 47(1) is interwoven with the right of access to courts. 62 The
question also requires this Court to consider the fundamental tenet of judicial
independence.63 Therefore, this Court’s constitutional jurisdiction is engaged. This
question of interpretation also engages our general jurisdiction, as it is an arguable point
of law of general public importance, and it is one which this Court ought to consider,
having regard to differing views expressed on this question by various divisions of the
High Court.
[43] This Court grants leave to appeal directly to it where it is in the interests of justice
to do so. 64 Whether leave should be granted depends on the facts of each case. 65
Although there is no exhaustive list, factors to be considered include the importance of
the legal question, the possibility that a dispute of fact may arise, the extent to which
lower courts have considered the question, the necessity to bring finality and certainty
to the question, urgency and whether time and costs would be saved. 66
[44] The interpretation of section 47(1) is a purely legal inquiry. This inquiry
transcends the narrow interests of the parties. In addition to its intersection with the
right of access to courts and judicial independence, this inquiry has broader public
implications. It is not uncommon that retired judges serve as commissioners. Various
decisions of the High Court have expressed divergent views on the interpretation of
60 Sunwest International (Pty) Ltd v Western Cape Gambling and Racing Board [2025] ZACC 18; 2025 (11)
BCLR 1322 (CC); 2026 (2) SA 9 (CC) at para 25.
61 Section 39(2) of the Constitution. See also id at paras 32-3 and Fraser v Absa Bank Ltd (National Director of
Public Prosecutions as Amicus Curiae) [2006] ZACC 24; 2007 (3) BCLR 219 (CC) ; 2007 (3) SA 484 (CC) at
para 47.
62 Section 34 of the Constitution.
63 Section 165(2) of the Constitution.
64 Section 167(6)(b) of the Constitution.
65 Freedom of Religion South Africa v Minister of Justice [2019] ZACC 34; 2019 (11) BCLR 1321 (CC) , 2020
(1) SA 1 (CC) at para 27.
66 Id and Union of Refugee Women v Director: Private Security Industry Regulatory Authority [2006] ZACC 23;
2007 (4) BCLR 339 (CC); 2007 (4) SA 395 (CC) at para 21.
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23
section 47(1).67 It is therefore desirable to bring finality and legal certainty to this
inquiry. It also bears repeating that the subject matter of the Commission is of great
public significance and touches on the foundation of our constitutional democracy.
While this Court is slow to condone bypassing the Supreme Court of Appeal,68 it has,
in the present matter, the benefit of the two judgments in the High Court and the views
expressed by other courts. These considerations all favour granting leave to appeal
directly to this Court.
[45] Another consideration is urgency. Urgency may afford grounds for engaging
this Court directly where a delay in securing a definitive ruling would “prejudice the
public interest or prejudice the ends of justice”.69 This matter was patently urgent when
it was launched, as the Commission’s term was due to expire on 29 May 2026. The
extension of the Commission’s term to 31 December 2026 has alleviated but not
eradicated this urgency. Additionally, the enforcement of summons for the applicants
to give evidence before the Commission has only been stayed until 1 September 2026.
The relief that the applicants seek include an order directing the removal of
Commissioner Khampepe from the Commission. Such relief could call into question
the preceding and ongoing work of the Comm ission, which is operating at significant
cost to public resources.
[46] The respondents contend that the urgency is self -created, as the applicants only
requested Commissioner Khampepe’s recusal about three months after receiving the
Rule 3.3 Notices. This delay is neither ideal nor immaterial, and this Court has
previously held that recusal applications should “be raised at the earliest possible
stage”.70 The applicants’ main explanation – that they needed time to strategise and
67 For example, NP above n 38; FUL above n 36; Mthenjwa v Steyn [2017] ZAWCHC 161 (Mthenjwa);
67 For example, NP above n 38; FUL above n 36; Mthenjwa v Steyn [2017] ZAWCHC 161 (Mthenjwa);
Engelbrecht v Khumalo 2016 (4) SA 564 (GP) (Engelbrecht); and Soller v President of the Republic of
South Africa 2005 (3) SA 567 (T) (Soller).
68 Bruce v Fleecytex Johannesburg CC [1998] ZACC 3; 1998 (2) SA 1143 (CC); 1998 (4) BCLR 415 (CC)
(Fleecytex) at para 8.
69 Id and Transvaal Agricultural Union v Minister of Land Affairs [1996] ZACC 22; 1996 (12) BCLR 1573 (CC);
1997 (2) SA 621 (CC) at paras 18-19.
70 Bernert above n 21 at para 71.
THERON J
24
weigh various considerations – does not constitute a wholly satisfactory explanation.
Notwithstanding the delay, this matter remains urgent and it is in the interests of justice
for this Court to entertain this matter.71 On a holistic evaluation of the foregoing factors,
leave to appeal directly to this Court on an urgent basis is granted.
Interpretation of section 47(1)
[47] In general terms, section 47(1) prevents a litigant from instituting civil
proceedings against a judge of a Superior Court without the consent of the head of that
Court.72 The applicants argue that this section does not apply to the review application,
and that the High Court erred by wrongly extending the section’s scope to include
retired judges who are cited nomine officio as chairpersons of commissions of inquiry ,
mischaracterising the review application as a civil proceeding against a judge and
finding that section 47(1) is a jurisdictional prerequisite.
[48] The respondents submit that on a textual reading, section 47(1) excludes only
domestic violence proceedings. It draws no distinction between retired judges and those
in active service. They further submit that Commissioner Khampepe falls within the
ambit of section 47(1) and that the applicants were required to seek the Chief Justice’s
consent before instituting the review application.
[49] It is trite that statutory interpretation is a unitary exercise, requiring courts to
consider text, context and purpose collectively and construe statutes consistently with
the Constitution.73 I begin with a discussion of the context and purpose of section 47(1).
71 See Economic Freedom Fighters v Speaker of the National Assembly [2026] ZACC 17; 2026 (8) BCLR 761
(CC) at paras 93-5.
72 Except for actions that arise from the Domestic Violence Act.
73 Cool Ideas 1186 CC v Hubbard [2014] ZACC 16; 2014 (4) SA 474 (CC); 2014 (8) BCLR 869 (CC) at para 28
and Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 All SA 262
(SCA); 2012 (4) SA 593 (SCA) at para 18.
THERON J
25
Context and purpose of section 47
[50] Section 47(1) is the successor of section 25(1) of the previous
Supreme Court Act74 (repealed Act). The main difference from its predecessor is that
it extends its protection to Justices of this Court.75 The High Court in Soller held that
section 25(1) of the repealed Act operated as a restriction against vexatious litigation
and stated:
“Judges should not, in the execution of their judicial functions, be inhibited by fear of
being dragged to court unnecessarily over their judgments. Such a threat could have a
chilling effect on the execution of their duties. Furthermore, judges should rather spend
time hearing matters than defending themselves against endless unfounded civil
claims.”76
[51] Engelbrecht concerned civil proceedings instituted against a sitting judge in her
personal capacity. Expounding on the purpose and context of section 47(1), that Court
stated:
“Section 47(1) is the mechanism through which the institution of legal proceedings
against judges is regulated and plays what I regard as a gate keeping role. In essence
the section seeks to insulate judges from unwarranted and ill -conceived legal
proceedings aimed at them. The need to protect judges from unwanted litigation is not
difficult to fathom. The core function of judges is the adjudication of disputes
involving competing interests daily. The judgments they hand down as well as the
statements they make in court and in their judgments invariably displease some litigants
and sometimes their legal representatives.”77
74 59 of 1959. Section 25(1) read:
“Notwithstanding anything to the contrary in any law contained, no summons or subpoena
against the Chief Justice, a judge of appeal or any other judge of the Supreme Court shall in any
civil action be issued out of any court except with the consent of that court : Provided that no
such summons or subpoena shall be issued out of an inferior court unless the provincial division
which has jurisdiction to hear and determine an appeal in a civil action from such inferior court,
has consented to the issuing thereof.”
75 Before the Act came into effect, the question of suing Justices of this Court used to be governed by section 5 of
the Constitutional Court Complementary Act 13 of 1995.
76 Soller above n 67 at para 14.
77 Engelbrecht above n 67 at para 3.
THERON J
26
[52] The long title of the Act indicates that its object is, among other things, to “make
provision for the administration of judicial functions of all courts”.78 This is reaffirmed
in section 2(1)(c)79 of the Act under the title “[o]bjects and interpretation of [the] Act”.
The preamble of the Act further discusses the goal of providing for “a uniform
framework for judicial management, by the judiciary, of the judicial functions of all
courts” and unifying a “fragmented court structure and infrastructure”. 80 Overall, the
Act is primarily concerned with the governance and functioning of the courts. Tied to
this objective, the Act also deals with the function of the heads of each Superior Court.
The head of each Superior Court is responsible for ensuring that sufficient judges are
available to conduct the business of that court and issuing directions to the judges of
their court with respect to their attendance at court.81
[53] Another important contextual consideration is section 47(2). As section 47(1)’s
twin provision, it addresses civil proceedings against judges of Superior Courts after
the consent stipulated in section 47(1) has been obtain ed. Section 47(2) requires
consultation with the relevant head of court for the determination of the date that a judge
may appear in a civil action. 82 These provisions do not operate in isolation but form
part of a unitary legislative scheme. Read together, they are concerned with the
management of judicial capacity and the proper functioning of the courts. Section 47(1)
78 The long title reads:
“To rationalise, consolidate and amend the laws relating to the Constitutional Court, the
Supreme Court of Appeal and the High Court of South Africa; to make provision for the
administration of the judicial functions of all courts; to make provision for ad ministrative and
budgetary matters relating to the Superior Courts; and to provide for matters incidental thereto.”
79 The section reads:
79 The section reads:
“To make provision for the administration of the judicial functions of all courts, including
governance issues, over which the Chief Justice exercises responsibility.”
80 The Preamble of the Act.
81 Section 9(4)(a) and (b) of the Act.
82 Section 47(2) reads:
“Where the issuing of a summons or subpoena against a judge to appear in a civil action has
been consented to, the date upon which such judge must attend court must be determined in
consultation with the relevant head of court.”
THERON J
27
plays a gatekeeping role against unmeritorious and vexatious claims, and section 47(2)
ensures that meritorious claims do not unduly inconvenience our courts.
[54] A holistic evaluation of the for egoing reveals that section 47(1) serves three
related purposes. First, it shields judges from vexatious, frivolous or otherwise
unmeritorious litigation. Second, it protects the proper administration of courts and
ensures that court functions are not unduly disrupted by civil proceedings against
judges. Third, it enables judges to apply the law without fear, favour or prejudice ,83
thereby enhancing the independence and integrity of the Judiciary as a whole. The
jurisprudential crux of section 47(1) is the nature of the judicial office and its essential
requirement of judicial impartiality. It safeguards judicial decision-making from the
spectre of frivolous litigation and guards against the wheels of justice being slowed by
unmeritorious stratagems aimed at the Judiciary.
[55] Our courts have recognised that section 47 does not confer an absolute immunity
on judges against civil proceedings .84 A fundamental tenet of the rule of law is that
nobody is above the law. Section 47(1) operates in tandem with our common law
judicial immunity to strike the appropriate balance between judicial independence and
judicial accountability, as well as the proper administration of justice.
Is Commissioner Khampepe a “judge of a Superior Court”?
[56] Section 47(1) applies to civil proceedings instituted against a “judge of a
Superior Court”. On a textual reading, section 47(1) states that no civil proceedings,
except for proceedings in terms of the Domestic Violence Act, may be instituted against
any judge of a Superior Court without the consent of the head of that court. It has been
held that the language of section 47 is expansive and covers both matters related to
judges’ official duties and personal matters.85
83 Section 165(2) of the Constitution.
judges’ official duties and personal matters.85
83 Section 165(2) of the Constitution.
84 Soller above n 67 at para 16 and Mthenjwa above n 67 at paras 11 and 13.
85 High Court majority above n 32 at para 27. See also Engelbrecht above n 67 at para 5 and Soller id at para 17.
THERON J
28
[57] While section 1 of the Act defines “Superior Court” as “the Constitutional Court,
the Supreme Court of Appeal, the High Court and any court of a status similar to the
High Court”, the Act does not define a “judge”. The Commission Respondents rely
heavily on this lack of a definition to argue that section 47(1) does not distinguish
between active and retired judges. For section 47(1) to apply, however, the operative
inquiry is whether Commissioner Khampepe is a “judge of a Superior Court”.
[58] After twelve years of distinguished service, Commissioner Khampepe retired
from the Constitutional Court in 2021. It is common cause that, presently, she does not
participate in proceedings of this Court. Under these circumstances, she is not a Justice
of this Court. The Constitution and the Act both stipulate that the composition of th is
Court consists of the Chief Justice, the Deputy Chief Justice and nine other Justices. 86
The Constitution also stipulates that a maximum of eleven judges can serve at a given
time. 87 Former Justices who no longer make up this composition, such as
Commissioner Khampepe, are not Justices of this Court under section 167(1) of the
Constitution or section 4(1)(a) of the Act.
[59] Similarly, t he Supreme Court of Appeal consists of a President, a
Deputy President and “so many other judges as may be determined in accordance with
the prescribed criteria , and approved by the President”. 88 Each division of the
High Court also consists of a Judge President, a Deputy Judge President and “ so many
other judges as may be determined in accordance with the prescribed criteria , and
approved by the President”. 89 For a judge to be considered a “judge of a Superior
Court” for the purpose of section 47(1), they must form part of the composition of one
of the Superior Courts as defined in the Act. The Act frequently makes reference to the
judge or judges “of” a particular court, and it is clear that in all cases the reference is to
86 Section 167(1) of the Constitution and section 4(1)(a) of the Act.
87 Section 167(1) of the Constitution.
88 Section 5(1)(a) of the Act.
89 Section 6(2) of the Act.
THERON J
29
those persons currently serving as judges of the court, not retired or former judges of
the court.90 Commissioner Khampepe is not a member of the Supreme Court of Appeal
or of the High Court. It follows that she is not a “judge of a Superior Court”.
[60] This interpretation also accords with the context and purpose of section 47(1).
As mentioned, an important objective underpinning the section is to ensure the proper
functioning of courts. The Chief Justice, as the head of this Court, assumes the
responsibility of managing it, including the determination of the court roll, the
allocation of responsibilities to the other Justices and the approval of their extraordinary
absences from this Court. The Chief Justice has no oversight role in respect of retired
Justices of this Court. More broadly, retired judges do not form part of the composition
of their former courts: they do not contribute to the functioning of those courts, nor do
their former heads of court exercise oversight over them. To include them under the
definition of a “judge of a Superior Court” under section 47(1) would contradict the
legislative scheme and provide little benefit to the functioning of the courts or the
Judiciary.
[61] Additionally, this interpretative extension risks creating a perception that judges
are above the law. While section 47(1) only plays a gatekeeping role and does not offer
an absolute bar against civil lawsuits, to extend its reach to all judges, active and retired,
would mean that once a person is appointed as a “judge of a Superior Court”, they would
enjoy the protection of section 47(1) for the remainder of their life . Including former
judges who no longer render active service under the section’s scope would help neither
the management of the courts nor the functioning of the Judiciary. To the contrary, it
would add to the administrative burden on the heads of court . Moreover, this
would add to the administrative burden on the heads of court . Moreover, this
interpretive extension would impose a procedural hurdle on litigants who wish to
institute proceedings against former judges merely because they used to form part of
the Judiciary. This may foster the impression that the law treats judges differently from
others. In Prinsloo, this Court held that the right to equality before the law , now
90 See, for example, para (iv) of the definition of “head of court” in section 1; section 4(1)(a) (dealing with the
composition of this Court); and sections 6(4)(c), 7(2), 9(4)(a)-(b), 17(2)(a) and (c), 35(3), 36(5) and 40(2).
THERON J
30
enshrined in section 9(1) of the Constitution, means that “no one is above or beneath
the law and that all persons are subject to law impartially applied and administered”.91
[62] The need to shield judges from vexatious or frivolous litigation so that they can
apply the law without fear, favour or prejudice also diminishes when section 47(1) is
applied to retired judges. I am aware that the threat of retaliatory litigation, and the
corresponding chilling effect, may endure after a judge’s retirement. In this regard,
however, the long -established common law principle of judicial immunity afford s
sufficient protection. 92 Under the Aquilian action, pure economic loss arising from
negligent judgments is not actionable. 93 Similarly, under the actio iniuriarum ,
otherwise defamatory utterances made by judicial officers in the exercise of their
judicial authority are presumed to be made lawfully within their authority and without
animus iniuriandi (intention to injure).94 This presumption is only rebutted where the
judicial officer is actuated by malice.95
[63] The common law protections differ from section 47(1) to the extent that they
only apply to damages arising from the discharge of judicial duties . Section 47(1), on
the other hand, applies to all civil proceedings, regardless of whether the cause of action
relates to the judicial office or not. 96 This stems from section 47(1)’s purpose of
protecting the proper administration of courts. Crucially, however, the common law
immunity from civil liability for damages that arose from the discharge of judicial duties
endures beyond a judicial officer’s retirement. Thus, even beyond the shield of
section 47(1), these well -established protections safeguard judicial independence by
allowing judicial officers to exercise their functions without fear, favour or
91 Prinsloo v Van der Linde [1997] ZACC 5; 1997 (3) SA 1012 (CC); 1997 (6) BCLR 759 (CC) at para 22.
92 Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA [2005] ZASCA 73;
2006 (1) SA 461 (SCA) ( Telematrix) at para 19; Claasen v Minister of Safety and Security 2010 (2) SACR 451
(WCC) (Claasen) at para 31; and Minister of Safety and Security v Van der Walt [2014] ZASCA 174; 2015 (2)
SACR 1 (SCA) (Van der Walt) at para 20.
93 Van der Walt id at paras 18-20; Telematrix id at para 14; and Claasen id at para 17.
94 May v Udwin 1981 (1) SA 1 (A) at 16A-D.
95 Id at 18A-B. See also Moeketsi v Minister van Justisie 1988 (4) SA 707 (T) at 714B-D.
96 Except for the actions that arise from the Domestic Violence Act.
THERON J
31
prejudice – particularly the fear that actions taken in the exercise of their judicial duties
could be liable for future litigation .97 It is also relevant to observe that, except for
South Africa and two of its southern African neighbours, other countries have not
deemed it necessary to enact a provision similar to section 47(1) in order to protect
judges against vexatious or frivolous litigation.98
[64] Retired judges may, in certain circumstances, fall within the prescripts of
section 47(1). In FUL, it was held that the immunity provided by the section “also
extends to those retired Judges who remain in service”.99 For example, a retired judge
may be recalled to perform judicial duties as an acting judge in a Superior Court. During
that acting period, the retired judge forms part of the panel of that court and is a “judge
of a Superior Court”. It is not necessary, in this matter, to list all circumstances where
a retired judge may be considered a judge of a Superior Court for the purpose of
section 47(1).
[65] Commissioner Khampepe’s role as the Chairperson of the Commission does not
bring her within the ambit of a “judge of a Superior Court” for the purpose of
section 47(1). As she acknowledged in her recusal ruling, “Commissions of Inquiry are
not courts of law. This Commission is an investigatory body tasked with investigating
the matters set out in its Terms of Reference.” Commissions of inquiry are creatures of
the Commissions Act100 and obtain powers from statutory sources. Commissioners are
appointed solely by the President. There is no requirement that a commissioner must
be a judge. In this very case, one of the commissioners is an advocate.
97 Telematrix above n 92 at para 19; Claasen above n 92 at para 31; and Van der Walt above n 92 at para 20.
98 Von Huelsen “The Liability of the Judiciary: The South African Doctrine of Leave to Sue” (2000) 117 SALJ
713 at 714 states:
713 at 714 states:
“The South African concept of leave to sue is almost unique. Except for Botswana and Namibia,
no other country provides for a similar preliminary procedural requirement at present. It is
evident that leave to sue was received by these neighbouring countr ies as part of the general
assimilation of South African Roman-Dutch law.”
99 FUL above n 36 at para 25 (emphasis added).
100 8 of 1947.
THERON J
32
[66] The appointment of a judge of a Superior Court , however, necessitates the
involvement of the Judicial Services Commission. 101 This is a constitutional prescript.
Judges derive their powers directly from the Constitution. It is “coincidental” that a
judge may be appointed as a commissioner. 102 In this regard, the following passage
from Erasmus is instructive:
“It is frequently said in the public media that commissions which are headed by a judge
or a magistrate are ‘judicial commissions of inquiry’. There is no warrant in
South African law for this expression, which is a misnomer and is only calculated to
confuse. A commission exists, whether it is appointed by the State President or any
other body or person, by virtue of the fact that the person who accepts such mandate
was entrusted with some specific charge. The mere fact that in certain cases where the
State President appoints a commission the powers contained in the Commissions Act
are conferred on [them] does not turn such a person into anything else but an ordinary
citizen who is charged with a co mmission. . . . The commissioner acts as such and
[their] function is wholly unconnected with the position which he otherwise occupies.
It is purely coincidental that commissioners are magistrates or judges. In no respect
whatsoever can their commissions of inquiry be equated with courts of law as they, qua
commissioners, derive no power whatsoever from the judicial offices which they
hold.”103 (Emphasis added.)
[67] In view of the fact s that Commissioner Khampepe is not presently a Justice of
this Court or a judge of any other Superior Court, and that the Commission is not a court
of law, she falls beyond the ambit of section 47(1).
[68] Additionally, the High Court majority’s reliance on the definition of “service” in
the Remuneration Act merits discussion. The High Court majority employed the
definition in the Rem uneration Act to find that serving on a commission of inquiry
definition in the Rem uneration Act to find that serving on a commission of inquiry
constitutes judicial service for the purpose of section 47(1) of the Act. This was
impermissible.
101 Section 174(3) and (6) of the Constitution.
102 Erasmus N.O. v SA Associated Newspapers Ltd 1979 (3) SA 447 (W) at 456E.
103 Id at 456C-F.
THERON J
33
[69] It is settled law that one statute can be used to interpret another statute only when
the two are in pari materia (concerning the same subject matter) .104 In Independent
Institute of Education, this Court explained the proper approach thus:
“First, a special meaning ascribed to a word or phrase in a statute ordinarily applies to
that statute alone. Second, even in instances where that statute applies, the context
might dictate that the special meaning be departed from. Third, where the application
of the definition, even where the same statute in which it is located applies, would give
rise to an injustice or incongruity or absurdity that is at odds with the purpose of the
statute, then the defined meaning would be inappropriate for use and should therefore
be ignored. Fourth, a definition of a word in the one statute does not automatically or
compulsorily apply to the same word in another statute. Fifth, a word or phrase is to
be given its ordinary meaning unless it is defined in the statute where it is l ocated.
Sixth, where one of the meanings that could be given to a word or expression in a
statute, without straining the language, ‘promotes the spirit, purport and objects of the
Bill of Rights’, then that is the meaning to be adopted even if it is at od ds with any
other meaning in other statutes.”105
[70] The High Court majority’s interpretive borrowing cannot be sustained, as the
two Acts concern different subject matters. The Superior Courts Act addresses the
governance, functioning and administration of the courts. The Remuneration Act, on
the other hand, provides a framework for the remuneration and conditions of
employment of judges. While both Acts concern judges, their subject matters are
dissimilar and insufficiently related to justify interpretative borrowing.
[71] As a retired Justice of th is Court, Commissioner Khampepe, like other retired
Justices of this Court, receives remuneration with reference to the salary of a Justice of
Justices of this Court, receives remuneration with reference to the salary of a Justice of
this Court. This does not make her, or any other retired Justice of this Court, a “judge
104 Commissioner, South African Revenue Service v Medtronic International Trading SARL [2024] ZACC 26;
2025 (2) SA 337 (CC); 2025 (4) BCLR 383 (CC) at para 37 and Independent Institute of Education (Pty) Ltd v
KwaZulu-Natal Law Society [2019] ZACC 47; 2020 (2) SA 325 (CC); 2020 (4) BCLR 495 (CC) (Independent
Institute of Education) at paras 38-42 (judgment of Theron J).
105 Independent Institute of Education id at para 18.
THERON J
34
of a Superior Court” for the purpose of section 47(1). As mentioned, section 47(1)
affords judges qualified protection against civil proceedings being brought against them
so that they can apply the law independently and impartially, in order to ensure that the
functioning of the Judiciary is unhampered by improper interruptions. These purposes
are unrelated to the purposes of the Rem uneration Act. The two Acts are, thus, not in
pari materia.
[72] Commissioner Khampepe has not been recalled to perform judicial functions at
a Superior Court. Her position as a commissioner is unconnected to the position she
previously occupied as a Justice of this Court. It follows that Commissioner Khampepe
is not a “judge of a Superior Court” as envisaged in section 47(1).
Remedy
[73] The next issue to consider is remedy. The applicants ask this Court not to remit
but to determine the merits of the review application. To achieve this, they also seek
direct access to this Court.
[74] At the hearing, counsel for President Mbeki conceded that the application for
direct access was filed out of an abundance of caution. Indeed, i ts subject matter – a
review of the recusal ruling – is identical to the applicants’ review application in the
High Court. Definitionally, where litigants have sought recourse in another court, their
subsequent application to this Court on the same subject matter is not an application for
direct access: section 167(6)(a) of the Constitution stipulates direct access as a
mechanism for litigants “to bring a matter directly to the Constitutional Court” when it
is in the interests of justice to do so and with leave of this Court.106 In the circumstances,
the applicants’ application for direct access is misconceived.
106 Emphasis added.
THERON J
35
[75] Having found that section 47(1) is inapplicable to the review application and that
the High Court was mistaken in dismissing it on that point in limine , what remains
before this Court is whether to decide the review application.
[76] In my view, the answer is yes. The respondents contend that since the review
application is sought in medias res (in the middle of proceedings), with the
Commission’s inquiry still ongoing, the applicants should wait for the Commission to
conclude its work. I am not persuaded by this argument. While midstream reviews are
generally disfavoured, immediate judicial intervention might be warranted where the
impugned decision touches on jurisdiction . A complaint of actual or reasonably
apprehended bias differs from those relating to other irregularities. It “goes to the core
of the proceedings”.107 It is akin to saying that the Commission, by virtue of its tainted
composition, lacks jurisdiction.108 A decision as to the competency of a forum must be
regarded as “radical or definitive and not merely interlocutory”. 109
[77] Despite this Court’s caution in Spilhaus, 110 lower courts sometimes do “not
express [their] view on the merits to cover the eventuality of a further appeal”. 111 In
these scenarios, while this Court is wary of acting as a court of first and last instance,112
it recognises that it may, at times, be preferable to decide the unresolved questions rather
than to remit them to lower courts.
[78] On the appropriateness of remittal as a remedy, this Court laid down several
factors in Airports Company, including parties’ capacity to litigate, whether this Court
has the necessary information to answer the remaining legal questions, practical
107 Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service [1996] ZASCA 2; 1996 (3) SA 1 (A) at 10D.
108 Basson v Hugo [2018] ZASCA 1; 2018 (3) SA 46 (SCA) at para 18 and id at 10G.
109 Steytler N.O. v Fitzgerald 1911 AD 295 at 327 (judgment of Laurence J).
109 Steytler N.O. v Fitzgerald 1911 AD 295 at 327 (judgment of Laurence J).
110 Spilhaus Property Holdings (Pty) Ltd v Mobile Telephone Networks (Pty) Ltd [2019] ZACC 16; 2019 (4) SA
406 (CC); 2019 (6) BCLR 772 (CC) at paras 44-5.
111 United Manganese of Kalahari v Commissioner, South African Revenue Service and Four Similar Cases
[2025] ZACC 2; 2025 (5) BCLR 530 (CC); 2026 (2) SA 227 (CC) at para 378.
112 Fleecytex above n 68 at para 8.
THERON J
36
sensibilities and additional costs associated with prolonged litigation. 113 In that case,
while the “ lack of a reasoned definitive determination on the merits ” gave the Court
some pause, it ultimately decided that remittal was not appropriate after weighing it
against several practical considerations, such as the passage of time and cost
implications.114 The present matter tells a similar tale.
[79] The High Court majority only considered the section 47(1) point in limine ,
leaving out the remainder of the review application. As the next section shows, the
applicants also do not equip this Court with all the information to comprehensively
decide the review application. Two significant countervailing factors are urgency an d
finality. If this Court were to remit the review application to the High Court, even if
that Court decides the application on an urgent basis, it is possible that its decision
would be further appealed. In that scenario, the review application might not be finally
decided for another several months. Such a delay is highly undesirable in light of the
profound national importance and urgency of this matter. 115 It would not be in the
interests of justice to allow the Commission to continue to run, and possibly complete
its work, at great public cost, where the competence of its composition has been called
into question.
[80] Moreover, the failure by the High Court majority to reach the applicants’ review
grounds is no fault of the litigants; and while this Court does not have the benefit of the
reasoning of either the High Court majority or the Supreme Court of Appeal, it is aided
by the minority judgment in the High Court. Therefore, given the context of the present
matter, I conclude that remittal is not the appropriate course.
113 Airports Company South Africa v Big Five Duty Free (Pty) Ltd [2018] ZACC 33; 2019 (2) BCLR 165 (CC);
2019 (5) SA 1 (CC) at para 25.
114 Id at para 26.
115 See [45].
THERON J
37
Was the recusal application an administrative action?
[81] In any review application, there is the threshold question of the basis on which a
court is empowered to exercise its review jurisdiction . The applicants raise a slew of
review grounds under the Promotion of Administrative Justice Act 116 (PAJA).
Alternatively, they seek review under the principle of legality.
[82] PAJA and the principle of legality are two distinct avenues for the judicial review
of public power. The former applies specifically to administrative actions,117 while the
latter is an incident of the rule of law and applies to the exercise of all public power.118
These avenues should not be conflated, because they afford a reviewing court distinct
grounds under which to exercise scrutiny. In Motau, this Court distilled the elements
contained in the “rather unwieldy” definition of administrative action found in section 1
of PAJA:
“The concept of ‘administrative action’, as defined in section 1(i ) of PAJA, is the
threshold for engaging in administrative -law review. The rather unwieldy definition
can be distilled into seven elements: there must be (a) a decision of an administrative
nature; (b) by an organ of state or a natural or juristic person; (c) exercising a public
power or performing a public function; (d) in terms of any legislation or an empowering
provision; (e) that adversely affects rights; (f) that has a direct, external legal effect;
and (g) that does not fall under any of the listed exclusions.”119
[83] President Zuma, without more, simply urges this Court to exercise its PAJA
review jurisdiction. President Mbeki goes slightly further in his pleadings:
116 3 of 2000.
117 Minister of Health v New Clicks South Africa (Pty) Ltd [2005] ZACC 14; 2006 (1) BCLR 1 (CC); 2006 (2) SA
311 (CC) at paras 94-5 (judgment of Chaskalson CJ) and Bato Star Fishing (Pty) Ltd v Minister of Environmental
Affairs and Tourism [2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC) at para 22.
118 Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South
Africa [2000] ZACC 1; 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC) ( Pharmaceutical Manufacturers ) at
paras 17 and 33 and Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council
[1998] ZACC 17; 1998 (12) BCLR 1458 (CC); 1999 (1) SA 374 (CC) ( Fedsure) at paras 57-9.
119 Minister of Defence and Military Veterans v Motau [2014] ZACC 18; 2014 (5) SA 69 (CC) ; 2014 (8) BCLR
930 (CC) at para 33.
THERON J
38
“The definition of ‘administrative action’ in section 1 of PAJA would include a ruling
by the Chairperson of the Commission when she exercises a public power or performs
a public function in terms of the Commissions Act, and the Regulations and Rules
promulgated in accordance with that Act. The r ecusal decision (a) adversely affects
my rights and the rights of the former members of the executive to appear before an
impartial chairperson, (b) the decision has direct, external legal effect in that it is final –
the decision may not be reversed unless this Court reverses it. Unlike the findings of
the Commission at the end of the day, the recusal ruling is and remains binding on me,
(c) the recusal decision is not the exercise of executive powers.”120
[84] President Mbeki goes no further than what is stated above. In particular, n o
argument is made as to why the recusal ruling is “administrative in nature”. This Court
has time and again held that this is a determination to be made on a case -by-case
basis, 121 and t here is no presumption that every exercise of public power is
administrative in nature.122 In Sokhela, the High Court held:
“The court is required to make a positive decision in each case, whether a particular
exercise of public power or performance of a public function is of an administrative
character. . . . The inclusion, of the requirement that the decision be of an
administrative nature, demands that a detailed analysis be undertaken of the nature of
the public power or public function in question, to determine its true character . . . .
There is accordingly no mechanical process by which to determine whether a particular
exercise of public power or performance of a public function will constitute
administrative action. That will have to be determined in each instance by a close
analysis of the nature of the power or function and its source or purpose.”123
120 Second Applicant’s Founding Affidavit at para 213.
120 Second Applicant’s Founding Affidavit at para 213.
121 Motau above n 1 19 at para 36; Association of Regional Magistrates of Southern Africa v President of the
Republic of South Africa [2013] ZACC 13; 2013 (7) BCLR 762 (CC) ( Association of Regional Magistrates ) at
para 41; and President of the Republic of South Africa v South African Rugby Football Union [1999] ZACC 11;
1999 (10) BCLR 1059 (CC); 2000 (1) SA 1 (CC) (SARFU III) at para 143. See also Minister of Home Affairs v
Scalabrini Centre [2017] ZASCA 126; 2013 (6) SA 421 (SCA) (Scalabrini) at paras 51 and 54.
122 Motau id at para 34.
123 Sokhela v MEC for Agriculture and Environmental Affairs (KwaZulu-Natal) 2010 (5) SA 574 (KZP) at para 61.
THERON J
39
[85] This Court has accepted that the characterisation of a decision as being of an
administrative nature can be “something of a puzzle” .124 In this case, whether the
recusal ruling is administrative in nature was not canvassed in either judgment in the
High Court and has not been fully ventilated in this Court. Case law provides some
guidance on the relevant factors to consider but these cases were not properly raised or
considered by the parties.125
[86] Therefore, this Court is not in a position to determine whether the recusal ruling
constitutes an administrative action. By extension, it can neither decide if PAJA is the
appropriate avenue of review nor apply PAJA to the review application.
The principle of legality
[87] As mentioned, t he principle of legality , as an incident of the rule of law and
implicit in the architecture of our Constitution, constrains the exercise of all public
power.126 There is no serious dispute that the Commission exercises public power,
given its authority to, among other things, summon and examine witnesses and call for
the production of books, documents and objects . 127 These powers are rooted in
legislation and executive proclamation. Indeed, in Corruption Watch, the High Court
held that commissions of inquiry “must operate within the framework of the principles
of legality”.128
124 Association of Regional Magistrates above n 121 at para 41.
125 These factors include: the nature of the power being exercised; its source; its subject matter; whether it is more
closely related to policy formulation or implementation; whether it involves the exercise of a public duty; how
broad a discretion the decision -maker is afforded and the extent of the constraints imposed thereon; and how
appropriate it is to subject the exercise of public power to a higher level of judicial scrutiny. See Motau above
n 119 at paras 34 and 37-43; SARFU III above n 121 at paras 142-3; Permanent Secretary of the Department of
Education of the Government of the Eastern Cape v Ed -U-College (PE) (Section 21) Inc [2000] ZACC 23; 2001
(2) SA 1 (CC); 2001 (2) BCLR 118 (CC) at para 21; and Masetlha v President of the Republic of South Africa
[2007] ZACC 20; 2008 (1) BCLR 1 (CC); 2008 (1) SA 566 (CC) (Masetlha) at para 77.
126 Pharmaceutical Manufacturers above n 118 at para 17 and Fedsure above n 118 at para 59.
127 Sections 1(1)(b) and 3 of the Commissions Act. See the factors in Chirwa v Transnet Ltd [2007] ZACC 23;
2008 (3) BCLR 251 (CC); 2008 (4) SA 367 (CC) at para 186.
128 Corruption Watch v Arms Procurement Commission 2020 (2) SA 165 (GP) at paras 15 and 51.
THERON J
40
Lawfulness
[88] The rule of law requires that no public power may be exercised except for that
conferred by law. 129 The applicants submit that the recusal ruling was made by an
improperly constituted decision -making body and therefore unlawful. Specifically,
they point out that the recusal ruling was authored by Commissioner Khampepe alone,
rather than by the Commission as a collective. While all three members of the
Commission heard oral argument on the recusal applications, only
Commissioner Khampepe signed the recusal ruling, with no explicit indication of the
involvement of the other two commissioners. This, the applicants submit, renders the
recusal ruling ultra vires , as rule 11 of the Commission’s Rules provides that any
application not otherwise provided for in the rules must be made “in writing to the
Commission”.130 The applicants also rely on SARFU, where this Court, confronted with
recusal applications for a number of its members, considered these applications
individually and collectively. The applicants contend that where a recusal application
is directed at one member of a multi -member forum, the determination must be made
by the forum as a whole, not only by the member whose impartiality is impugned.
[89] This argument cannot be sustained. Rule 11 governs “any application to the
Commission which is not otherwise provided for”. While the recusal applications
would fall under it, nothing in rule 11 provides that the Commission ought to decide
them as a collective . Rule 11 generally discusses the procedures applicable to
applications “not otherwise provided for” but does not deal with the locus of the power
to decide these applications. It is silent on this question and of no assistance in this
matter.
129 Fedsure above n 118 at para 58.
130 Rule 11.1 reads:
“Any party wishing to make any application to the Commission which is not otherwise provided for in
these Rules must do so on . . . at least seven calendar days’ notice in writing to the Commission but the
Chairperson may condone non-compliance with this notice period on good cause shown.”
THERON J
41
[90] The applicants’ reliance on SARFU for their proposition that the Commission, as
a collective, should have decided the recusal applications is also misplaced. In that case,
this Court remarked:
“Counsel for the appellants submitted that if a particular judge were to place on record
that [they were] in fact biased in favour of one of the litigants, there would be an
obligation on such judge to withdraw from the case. If, however, the case was
concerned only with a reasonable apprehension of bias, the decision should be the
decision of the court and not the individual judge.
It is not necessary to decide what the position would have been in the present case if
one or more of the judges whose recusal was sought took the view that no grounds
existed for [their] recusal, but the majority of the Court took a different view. Counsel
were in agreement that the whole Court should participate in the hearing and that the
judges should consider the application individually and collectively. This is how the
matter was dealt with and in the result the judges whose recusal was sought, and the
remainder who were asked to look to their conscience, considered their own positions
individually, and also considered the application as a whole, collectively, and
concluded unanimously that none should be recused.”131
[91] This passage makes it clear that, while members of the Court in SARFU
considered the recusal applications both individually and collectively, the Court
imposed no “collective decision-making” obligation. To the contrary, the Court stated,
in unequivocal terms, that “[j]udges have jurisdiction to determine applications for their
own recusal” and that “the decision on the applications against each of the judges should
in each instance be theirs alone”. 132 SARFU is not authority for the proposition that
collective decision -making is mandatory in recusal applications filed before
multi-member panels.
131 SARFU above n 19 at paras 33-4.
132 Id at paras 27 and 31.
THERON J
42
Bias and procedural rationality
[92] The applicants also ask this Court to review the recusal ruling on the ground of
bias. This line of argument must start with a threshold question: is bias a standalone
ground of review under the principle of legality? This is yet another complex and novel
question of law that was not argued before this Court, nor discussed in either judgment
in the High Court and for which there is scarcely any guidance from lower courts.
[93] In the pre-constitutional era, the judicial review of procedural fairness was based
on the rules of natural justice , which included the twin pillars of audi alteram partem
(hear the other side) and nemo iudex in sua causa (no one may be a judge in their own
case). 133 After the enactment of PAJA, this Court concluded in Masetlha that
procedural fairness is not a requirement under the principle of legality. 134 That case
specifically concerned the right to be heard. Nothing was said as to the rule against
bias. In Public Protector, this Court also left open the question whether bias is a ground
of review under the principle of legality. 135 Given the consequences that deciding th is
issue would have on exercises of public power, in my view the interests of justice
militate against doing so now.136
[94] This conclusion, however, is not the end of the matter. While the applicants’
pleadings are far from exemplary, it is clear from these pleadings that the applicants are
of the view that it would offend the principle of legality for Commissioner Khampepe
133 See, for example, Turner v Jockey Club of South Africa 1974 (3) SA 633 (A) at 646E-H; Marlin v Durban Turf
Club 1942 AD 112 at 126; Van Huyssteen N.O. v Minister of Environmental Affairs and Tourism 1996 (1) SA
283 (C) at 304A-I; and Dhlamini v Minister of Education and Training 1984 (3) SA 255 (N) at 257F-G.
134 Masetlha above n 125 at para 78.
134 Masetlha above n 125 at para 78.
135 Democratic Alliance v Public Protector of South Africa [2023] ZACC 25; 2023 (11) BCLR 1281 (CC); 2024
(3) SA 1 (CC) at paras 54, 60 and 140.
136 In some foreign jurisdictions, the rule against bias is reviewed under the duty to act fairly or the rules of natural
justice. There, the standards for disqualifying bias differ depending on the public power being exercised . See
Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817 at para 47; Beno v Canada
(Commissioner and Chairperson, Commission of Inquiry into the Deployment of Canadian Forces to Somalia)
[1997] 2 FC 527 (CA) at paras 24 -7; Newfoundland Telephone Co v Newfoundland (Board of Commissioners of
Public Utilities) [1992] 1 SCR 623 at 638 -9; and Ridge v Baldwin [1963] 2 WLR 935 at 998. For the present
matter, I express no view on whether bias is a standalone ground under the principle of legality or whether it is
variable in its content.
THERON J
43
to exercise her public powers if a reasonable apprehension of bias against her exists.
Their pleadings related to this purported apprehension are detailed. Thus, I am of the
view that this Court has the necessary information to analyse this issue.
[95] The principle of legality demands that every exercise of public power be rational
in both substance and procedure. 137 While PAJA applies to decisions (or the failure to
take them) , 138 the principle of legality is “applicable to the exercise of all public
power”. 139 As noted, when acting in terms of the Commission’s empowering
provisions, the commissioners exercise public power. The question before us is whether
that exercise of public power is rationally connected to the purpose for which it was
granted. Procedural rationality is concerned with the evaluation of the relationship
between means and ends.140 There must be a nexus (link) between the means employed
to achieve a particular purpose and the purpose itself. Affordable Medicines held that a
court, when engaging in a rationality review, must exercise restraint.141 It is not for the
court to intervene merely because it takes the view that a different or more appropriate
means could have been used.142 However, where an exercise of public power bears no
rational relationship to its purpose, it is the Constitution itself that enjoins the court to
take action.
[96] In Simelane, this Court reviewed the President’s decision to appoint Mr Menzi
Simelane as the NDPP under the principle of legality. 143 It found that in making that
decision, the President’s failure to consider the findings of the Ginwala Commission,
137 Democratic Alliance v President of the Republic of South Africa [2012] ZACC 24; 2012 (12) BCLR 1297
(CC); 2013 (1) SA 248 (CC) (Simelane) at para 34.
138 Section 1 of PAJA.
139 Khumalo v MEC for Education, KwaZulu-Natal [2013] ZACC 49; 2014 (3) BCLR 333 (CC); 2014 (5) SA 579
(CC) at para 28. See also Pharmaceutical Manufacturers above n 118 at para 90.
140 Minister of Water and Sanitation v Sembcorp Siza Water (Pty) Ltd [2021] ZACC 21; 2021 (10) BCLR 1152
(CC); 2023 (1) SA 1 (CC) at para 60 and Simelane above n 137 at paras 32 and 36.
141 Affordable Medicines Trust v Minister of Health [2005] ZACC 3; 2005 (6) BCLR 529 (CC); 2006 (3) SA 247
(CC) at para 86.
142 Albutt v Centre for the Study of Violence and Reconciliation [2010] ZACC 4; 2010 (2) SACR 101 (CC); 2010
(3) SA 293 (CC); 2010 (5) BCLR 391 (CC) (Albutt) at para 51.
143 Simelane above n 137.
THERON J
44
which seriously impugned the candidate’s credibility, integrity and conscientiousness,
could not be rationally reconciled with his duty to appoint a “fit and proper person”. 144
This Court found that there was no rational connection between the process by which
the decision was taken and its purpose.
[97] In Albutt, this Court found that the President’s decision to deal with the
unfinished business of the TRC by creating a “special dispensation” to pardon persons
convicted of politically motivated offences, which excluded the participation of the
victims and their families, was irrational . 145 This Court reasoned that the “ twin
objectives of rebuilding a nation torn apart by an evil system and promoting
reconciliation between the people of South Africa” could not possibly be achieved
without the participation of both the victims and the perpetrators.146
[98] Similarly, in Scalabrini, the Supreme Court of Appeal held that although there
is no general duty to consult individuals or organisations affected by a decision, “there
are indeed circumstances in which rational decision-making calls for interested persons
to be heard”. 147 There, the Director -General decided to close a Refugee Reception
Office in Cape Town. The Supreme Court of Appeal endorsed the view that the
Refugees Act 148 empowered the Director -General to establish and close Refugee
Reception Offices for the purpose of ensuring that there is a sufficient number of offices
in the country to meet the needs of the Refugees Act.149 It concluded that this purpose
could not be achieved without consulting organisations which he knew had “long
experience and special expertise” in dealing with asylum seekers in Cape Town.150
144 Id at paras 86-9.
145 Albutt above n 142 at paras 68-9.
146 Id at para 56.
147 Scalabrini above n 121 at paras 68 and 72.
148 130 of 1998.
149 Scalabrini above n 121 at para 71.
150 Id at paras 70-2.
THERON J
45
[99] These cases demonstrate that the demands of procedural rationality depend on
the facts of each case and the purpose served by the exercise of power. For example,
while the right to be heard is not required under the principle of legality, when the
purpose for which the power is exercised cannot be achieved without consultation, the
failure to consult will render the exercise of public power irrational.
[100] I express no view on bias as a standalone review ground. However, where the
presence of a reasonable apprehension of bias precludes a process from being capable
of achieving its objectives, it renders the corresponding exercise of public power
irrational. Although rationality is not “a uniquely designed master key that opens any
and every door, any time, anyhow”, 151 it is axiomatically concerned with the
relationship between means and ends. That is the issue before us. What must be
examined is whether the Commission can serve its purpose if it is chaired by a person
in respect of whom a reasonable apprehension of bias exists.
[101] In Corruption Watch, the High Court held that “the purpose of a commission [is]
to restore public confidence in the situation which is investigated”.152 The Commission
is charged with investigating whether efforts or attempts were made to stop the
investigation or prosecution of the TRC cases. In Mail & Guardian, the Supreme Court
of Appeal held:
“[O]ne feature of an investigation that must always exist – because it is one that is
universal and indispensable to an investigation of any kind . . . is that the investigation
must have been conducted with an open and enquiring mind.”153
[102] Public confidence is pivotal to the Commission. Its subject matter focuses on
whether improper influence occurred through clandestine machinations. The
Commission also exercises its statutory powers, in part, for the purpose of restoring
Commission also exercises its statutory powers, in part, for the purpose of restoring
151 Electronic Media Network Ltd v e.tv (Pty) Ltd [2017] ZACC 17; 2017 (9) BCLR 1108 (CC) at para 6.
152 Corruption Watch above n 128 at para 15.
153 Public Protector v Mail & Guardian Ltd [2011] ZASCA 108; 2011 (4) SA 420 (SCA) at para 21.
THERON J
46
public confidence in relation to the TRC cases. Public frustrations over the lack of
prosecutorial progress in respect of the TRC cases and the Calata Group’s persistent
pursuit of long-delayed justice and accountability are both integral to the Commission’s
establishment. It is crucial that the public has confidence in the Commission.
[103] Can the purpose s of shedding light on alleged subterfuge and restoring public
confidence objectively be served by a commissioner in respect of whom a reasonable
apprehension of bias exists? In my view, it cannot. It was nearly two decades ago that
Albutt sought to deal with the “unfinished business” of the TRC.154 The Commission’s
animating purpose is bringing long -awaited closure and finality to the TRC cases.
Should the shroud of reasonably apprehended bias cloak the Commission, the
legitimacy of its findings will always be called in to question. As this Court held in
Simelane, the irrationality “colours the process as a whole” and threatens to taint the
entirety of the Commission’s work. 155 For these reasons, I am of the view that, in the
specific context of this matter, the presence of a reasonable apprehension of bias, if it
exists, is not rationally related to the achievement of the Commission’s purposes.
Was there a reasonable apprehension of bias?
[104] The next question is whether there was a reasonable apprehension of bias against
Commissioner Khampepe. The trite legal standard governing the recusal for judges in
respect of an apprehension of bias – the so-called “double reasonableness ” standard –
was applied in both the recusal ruling and the High Court minority judgment. A
commission of inquiry, however, is not a court of law. I have detailed differences
between the two, 156 and they raise yet another threshold question: does the reasonable
apprehension of bias standard governing the recusal of judges apply to
Commissioner Khampepe?
154 Albutt above n 142 at para 4.
Commissioner Khampepe?
154 Albutt above n 142 at para 4.
155 Simelane above n 137 at para 37.
156 See [65] to [67].
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[105] The Calata Group argue s that the “double reasonableness” standard should not
be applied rigidly. Instead, it submits, the test varies depending on the nature of the
decision-maker and the function being performed. It submits that the requisite
apprehension of bias applicable to commissioners in commissions of inquiry should be
higher than that applied to judges. This is so, according to the Calata Group, because
the Commission performs truth -seeking functions, for which a close working
relationship with the evidence leaders and a degree of institutional knowledge may be
beneficial. The Calata Group also submit s that unlike a court of law, the Commission
does not make binding legal or factual findings.
[106] The Commission arose from the Calata Application, and it forms part of the
broader process of seeking justice in the TRC cases. Justice must not only be done, but
must also be seen to be done. The standard of judicial recusal in our law is already
formidable, requiring evidence to displace a high presumption of impartiality. 157
Adopting the standard put forth by the Calata Group would mean that even an
apprehension of bias that could justify the recusal of a judge may not be sufficient for
Commissioner Khampepe. This would risk undermining public trust in the
Commission and jeopardising the broader project of pursuing justice in the TRC cases.
[107] Some arguments may even point in the opposite direction. In SARFU, this Court
articulated three rationales underlying the robustness of the double reasonableness
standard, namely, “the oath of office taken by the judges to administer justice without
fear or favour”; judges’ “ability to carry out that oath by reason of their training and
experience”; and judges’ “duty to sit in any case in which they are not obliged to recuse
themselves”.158
[108] These rationales do not strictly apply to commissioners of inquiry. Non-judges,
[108] These rationales do not strictly apply to commissioners of inquiry. Non-judges,
who are not bound by the judicial oath of office, can serve as commissioners. There is
157 SACCAWU above n 22 at para 13.
158 SARFU above n 19 at para 48.
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no guarantee that they will have the training and experience necessary to disabuse their
minds of irrelevant personal belief or predispositions. As was said in South African
Reserve Bank, the “presumption of impartiality in [favour of judges] has more to do
with the weight of the constitutional obligation imposed on them to act without fear,
favour or prejudice”.159
[109] This judgment cannot, and need not, settle this issue at this juncture. The legal
standard applicable to recusal applications for commissioners is a novel and complex
question. This question, too, has not been properly argued in this matter, and this
judgment refrains from resolving it. As to the standard applicable to
Commissioner Khampepe, the applicants’ burden cannot be higher than the burden
facing litigants seeking the recusal of judges. The applicants have not argued for a
lower burden. The foll owing analysis will, therefore, apply the same standard for the
recusal of judges to Commissioner Khampepe. If a reasonable apprehension of bias is
established under this standard, then the application of a lower standard would not
change the outcome.
[110] The content of the double reasonableness test has been discussed extensively in
the recusal ruling and the High Court minority judgment. While I need not provide a
comprehensive overview here, the following aspects are of particular relevance.
[111] First, the question is not whether there is actual bias or whether the
decision-maker is actually unable to deal with a matter even-handedly. The question is
what reasonable, fair-minded, informed and objective observers would apprehend. 160
In Lannon, the following was said:
“[I]n considering whether there was a real likelihood of bias, the Court does not look
at the mind of the Justice [themself] or at the mind of the Chairman of the Tribunal, or
whoever it may be. . . . It does not look to see if there was a real likelihood that [they]
whoever it may be. . . . It does not look to see if there was a real likelihood that [they]
159 Public Protector v South African Reserve Bank [2019] ZACC 29; 2019 (6) SA 253 (CC); 2019 (9) BCLR 1113
(CC) at para 87 (judgment of Mogoeng CJ).
160 SARFU above n 19 at para 48.
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would, or did, in fact favour one side at the expense of the other. The Court looks at
the impression which would be given to other people . . . . The Court will not inquire
whether [they] did, in fact, favour one side unfairly. Suffice it that reasonable people
might think [they] did. The reason is plain enough. Justice must be rooted in
confidence; and confidence is destroyed when right-minded people go away thinking:
‘The judge was biased.’”161 (Emphasis added.)
[112] Second, the test is objective and must be applied to the facts on which the recusal
is based.162 A plethora of cases have reiterated that both the person apprehending the
bias and the apprehension itself must be reasonable. 163 As to the apprehension, this
Court has further clarified that it concerns whether a reasonable, objective and informed
person would (not might) apprehend that the decision -maker might (not would) be
unable to bring an impartial mind to bear on the matter.164
[113] Third, the onus rests on the party alleging bias to establish a reasonable
apprehension.165 Where a “strongly and honestly felt anxiety” is insufficient, 166 courts
have required the alleging party to articulate “a logical connection between the matter
and the feared deviation”. 167 I have listed reasons underlying the imposition of such a
high burden.168 Indeed, “[a]llegations of bias, the antithesis of fairness, are serious. If
made with a sufficient degree of regularity, they have the potential to be deleterious to
the confidence reposed by the public in administrators.” 169 Though the burden may be
“formidable”,170 it is not an escape rope for courts to dismiss meritorious applications.
161 Metropolitan Properties Co (FGC) Ltd v Lannon [1968] 3 WLR 694 at 707G-H.
162 Masuku above n 20 at para 64.
163 For example, SACCAWU above n 22 at para 15 and Bernert above n 21 at para 34.
164 Turnbull-Jackson v Hibiscus C oast Municipality [2014] ZACC 24; 2014 (6) SA 592 (CC); 2014 (11) BCLR
1310 (CC) (Turnbull-Jackson) at para 32; SARFU above n 19 at para 48; and S v Roberts [1999] ZASCA 53; 1999
(4) SA 915 (SCA) (Roberts) at paras 32 and 34.
165 SARFU above n 19 at para 45.
166 Bernert above n 21 at para 34.
167 Goosen above n 23 at para 29, endorsed in Masuku above n 20 at para 69.
168 See [107].
169 Turnbull-Jackson above n 164 at para 35.
170 Bernert above n 21 at para 35.
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[114] This Court has stressed that, just as it is impermissible to yield to objections that
are frivolous or tenuous, it is equally impermissible to simply ignore those that are of
substance. 171 Although judges have a duty to sit in all cases where they are not
disqualified, where reasonable grounds for an apprehension of bias exist, they “ should
not hesitate” to recuse themselves. 172 Any doubt about a recusal application “must be
resolved in favour of recusal”.173 Properly construed, applications for recusal assume a
dual character. On one hand, allegations of bias must be based on concrete facts and
reasonable grounds. On the other hand, cogent and substantiated calls for recusal must
be treated seriously. Even though the burden to establish a reasonable apprehension of
bias is high , judicial responsibility requires a court to analyse allegations of bias
carefully and determine whether a case for recusal has been established.
[115] Similar considerations apply in the context of prior associations. Judges and
commissioners are human beings who carry their prior experiences and beliefs with
them, and absolute, colourless neutrality is “something of a chimera”. 174 What
impartiality requires is not the absence of these experiences, predilections or
preconceptions, but that the existence thereof does not create the impression in the mind
of the reasonable observer that the decision-maker might be unable to bring an impartial
mind to bear. While prior association with an institution alone does not form a
reasonable apprehension of bias, this Court held in SARFU that prior activities or
associations may create such an apprehension where “the subject-matter of the litigation
in question arises from such associations or activities”.175 Building on this proposition,
this Court said in Bernert that where a judicial officer “in [their] former
171 SACCAWU above n 22 at para 17.
172 Bernert above n 21 at paras 35-6 and SARFU above n 19 at para 48.
172 Bernert above n 21 at paras 35-6 and SARFU above n 19 at para 48.
173 S v Dube [2009] ZASCA 28; 2009 (2) SACR 99 (SCA) at para 13.
174 SACCAWU above n 22 at para 13 and SARFU above n 19 at para 42.
175 SARFU id at para 76.
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capacity . . . acquired personal knowledge relevant to a case before the court, it would
not be proper for that judicial officer to sit in that case”.176
[116] In considering the applicable legal standard, there is an added element in this
case, which concerns information within the personal and exclusive knowledge of the
decision-maker. Our courts have laid down an approach that promotes transparency
through disclosure. In SARFU, this Court held that a judicial officer is obliged to
disclose “such facts as might reasonably be relevant to a recusal application ”. 177
Bernert held that disclosure should be made on any pertinent interest “ no matter how
small the interest may be”.178 The High Court in Hugo also held that, where a legitimate
concern is raised concerning matters in the exclusive knowledge of the
decision-maker—
“[the] deliberate action of non-disclosure, revealing no disassociation from the petition,
leads to a reasonable apprehension of bias, simply because it is not far -fetched or
untenable to accept.”179
[117] Therefore, where an applicant has established a nexus between a decision-maker
and the subject matter before them and where the precise nature of this connection is in
the peculiar knowledge of the decision -maker, there is an obligation on the
decision-maker to disclose relevant information . In respect of the evidentiary burden,
the Appellate Division in Sykes held that “less evidence will suffice to establish a prima
facie (on the face of it) case where the matter is peculiarly within the knowledge of the
opposite party than would under other circumstances be required” .180 In Gericke, that
Court held that although there is no principle that the mere possession of personal
knowledge should shift the onus of proof, courts must “take cognisance of the handicap
under which a litigant may labour where facts are within the exclusive knowledge of
176 Bernert above n 21 at para 78.
177 SARFU above n 19 at para 89.
176 Bernert above n 21 at para 78.
177 SARFU above n 19 at para 89.
178 Bernert above n 21 at para 56.
179 Basson v Hugo 2019 (5) SA 142 (GP) at para 31.
180 Union Government (Minister of Railways) v Sykes 1913 AD 156 at 173-4.
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[their] opponent”.181 While the mere existence of a nexus may not itself establish a
reasonable apprehension of bias, it creates a duty to disclose – especially on those
matters exclusively known by the decision-maker.
Tenure at the NPA
[118] The applicants raise two of Commissioner Khampepe’s prior institutional
positions as causes for concern. First, she served at the TRC between 1995 and 2001.
Second, between 1998 and 1999, she served as a Deputy NDPP, one of the
highest-ranking officials in the NPA – the same institution that was in charge of
investigating and prosecut ing the TRC cases and that is directly under the
Commission’s inquiry.
[119] Three aspects of Commissioner Khampepe’s tenure at the NPA are relevant in
the evaluation of whether a reasonable apprehension of bias exists: first, her position as
a senior-ranking official in the organisation the Commission is tasked with investigating;
second, the overlap between her tenure and both the establishment of the HRIU and the
referral of the TRC cases to the NPA ; and third, the fact that former colleagues from
her time at the NPA have been called to testify before the Commission.
Position as Deputy NDPP
[120] To fully understand Commissioner Khampepe’s role at the NPA, regard must be
had to the powers vested in her as a Deputy NDPP. While some of these powers could
only be exercised subject to the control and authorisation of the then -NDPP,
Mr Ngcuka, the National Prosecuting Authority Act 182 (NPA Act) enabled her to,
among other things, institute, conduct and discontinue criminal proceedings; determine
prosecution policy and issue policy directives; intervene in prosecution process when
181 Gericke v Sack 1978 (1) SA 821 (A) at 827D-F.
182 32 of 1998.
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policy directives were not complied with; and review decisions to prosecute or not to
prosecute, provided that certain procedures were complied with.183
[121] It is common cause that the establishment and operationalisation of the HRIU,
the unit mandated to deal with the TRC cases and similar matters, took place during
Commissioner Khampepe’s tenure at the NPA. The fact that the TRC started referring
certain cases to the NPA from 1998 suggests that, with respect to at least some of the
TRC cases, Commissioner Khampepe was on both the referring end (the TRC) and the
receiving end (the NPA). In the eyes of a reasonable and objective observer, do these
facts establish a nexus between Commissioner Khampepe’s role at the NPA and the
mandate of the Commission?
[122] There is no doubt that the NPA processed the TRC cases during
Commissioner Khampepe’s tenure there as a senior official. Her position specifically
afforded her the power and discretion to decide whether to institute, conduct and
discontinue prosecutions. She also had the power to determine prosecutorial policies
and issue directives in the NPA, which guide how the organisation approaches cases.
The establishment of the HRIU and the processing of the TRC cases were matters of
profound national significance. It is thus not a stretch of the imagination to conceive
that as a Deputy NDPP, Commissioner Khampepe probably had involvement in, or at
least knowledge of, the handling of these matters, including high-level policy decisions
related to whether or how to investigate and prosecute them. Therefore, her prominent
position within the NPA, her wide powers as a Deputy NDPP and her background with
the TRC all form part of the nexus. In my view, a reasonable person would draw a
reasonable inference of bias in the absence of any explanation to the contrary by
Commissioner Khampepe.
[123] In the recusal ruling, much was made of the “2003 temporal boundary”. The
[123] In the recusal ruling, much was made of the “2003 temporal boundary”. The
Commission’s Terms of Reference stipulate that the period relevant to its inquiry is “the
183 Sections 21 to 23 of the NPA Act.
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period since 2003”. Commissioner Khampepe’s former roles at the TRC and the NPA
ended in 2001 and 1999, respectively. This temporal disjunct, so reason ed the recusal
ruling, renders any suspicion of bias based on her prior roles untenable.
[124] This argument collapses under scrutiny. Witnesses and interested parties before
the Commission have been called to account for allegations dating back to years before
2003. The Commission issued a Rule 3.3 Notice to President Mbeki and called on him
to answer allegations that included:
(a) “[S]ecret consultations between the ANC government and representatives
of the [South African Defence Force (SADF)] and the security police from
1998 until early 2004. The main aim appeared to be to reach agreement
on a legislative solution on how to avoid prosecutions in the wake of the
TRC.”184
(b) “[C]onsultations between government and a group of high-ranking former
generals of the SADF commenced during 1998.”185
[125] Similarly, the Commission requested Ju dge Saldanha to furnish it with
“information concerning decisions, discussions or policies affecting the investigation
and prosecution of TRC-related cases”.186 Judge Saldanha only served at the HRIU in
1999. Not only is this period before the so -called “temporal boundary”, it also
overlapped with Commissioner Khampepe’s tenure as Deputy NDPP. The fact that one
of her former colleagues has been summoned, specifically to adduce evidence related
to events that occurred at the organisation at which they both worked and during the
period they shared, suggests that had Commissioner Khampepe not been appointed to
chair the Commission, she may herself have been a competent and compellable witness
before it. The rule against bias, nemo iudex in sua causa, pared down to its most literal
184 Notice in terms of Rule 3.3 of the Rules of the Judicial Commission of Inquiry into Allegations Regarding
Efforts or Attempts Having Been Made to Stop the Investigation or Prosecution of Truth and Reconciliation
Commission Cases (19 September 2025) at para 9 (emphasis added).
185 Id (emphasis added).
186 Request for Assistance with Information in Aid of the Judicial Commission of Inquiry to Inquire into
Allegations Regarding Efforts or Attempts Having Been Made to Stop the Investigation or Prosecution of Truth
and Reconciliation Commission Cases (14 November 2025) at para 3.
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substance, propounds the principle that no one may be a judge in their own case.
Although the Commission is not a court of law, this fact reinforces the nexus between
Commissioner Khampepe’s position at the NPA and the subject matter of the
Commission.
[126] Although some alleged obstructions of the investigations into the TRC cases may
have occurred in or after 2003, it seems self -evident – and readily accepted by the
Commission – that such obstructions may well have been presaged by earlier
negotiations or arrangements. This leaves no doubt that the Commission itself considers
events pre -dating 2003, including events that took place when
Commissioner Khampepe served at the TRC and the NPA, material to its inquiry.
Otherwise, the Rule 3.3 Notices including pre -2003 allegations would, as the
High Court minority observed, “defy common sense”.187
[127] The Rule 3.3 Notices and the request to Judge Saldanha further dispel the notion
that pre-2003 events are mere contexts or backdrops to the Commission’s mandate. By
seeking to investigate alleged improprieties going back to 1998, the Commission
acknowledges that suspected efforts to stifle the investigation or prosecution of the TRC
cases did not commence on or after 2003. 2003 is not a magical “cut -off” that severs
prior events from consideration. The Commission’s own conduct strengthens the view
that pre-2003 events are relevant to the same subject matter that it investigates. As aptly
put by the High Court minority:
“The Commission is not concerned solely with acts of interference in the abstract, but
with whether, and how, prosecutorial decisions in TRC -related matters were shaped,
deferred or abandoned over time. That enquiry necessarily traverses the earlier period
in which those cases were under consideration, the prosecutorial framework within
which they were handled, and the decisions taken or not taken at that stage.”188
187 High Court minority above n 1 at para 128.
188 Id at para 136.
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[128] I agree with this reasoning. The recusal ruling erects an artificial wall of division
by using the 2003 temporal boundary.
Involvement with the HRIU
[129] The Calata Group raised concern about Commissioner Khampepe’s involvement
in the HRIU because this unit was established to advise Mr Ngcuka “on how to handle”
the TRC cases. This allegation originated in a letter dated 11 November 2025:
“Between September 1998 and December 1999, [Commissioner] Khampepe was a
Deputy [NDPP]. During this period, she apparently played a role on the [HRIU],
established by then NDPP Bulelani Ngcuka to advise him on how to handle the cases
referred by the [TRC] to the [NPA].”189
[130] At that point, Commissioner Khampepe did not respond to this allegation. The
applicants restated it in their recusal applications. In her recusal ruling ,
Commissioner Khampepe said:
“I am not aware of any specific policy on TRC cases that I was involved in emerging
from the [HRIU] during 1998 or 1999.”190
[131] It is important to note that in the recusal ruling, Commissioner Khampepe did
not deny any involvement in the HRIU but said she was not aware of “any specific
policy on TRC cases” emerging from the unit. This statement could even suggest
involvement in the HRIU. It is also significant that the first denial of
Commissioner Khampepe’s role in the HRIU came in the High Court. A bare denial
was tendered when Advocate Semenya, on behalf of the Commission Respondents,
stated: “I . . . deny that [Commissioner Khampepe] had any role in the NPA’s [HRIU].”
189 Annexure TMM20 of the Second Applicant’s Founding Affidavit.
190 Recusal ruling at para 50.
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[132] Commissioner Khampepe has not explained the nature and scope of her role in
the NPA. This information is not in the public domain but peculiarly within her
knowledge. While the applicants bear the onus to establish a reasonable apprehension
of bias, there was an obligation on Commissioner Khampepe to disclose facts within
her exclusive knowledge that “might reasonably be relevant to a recusal application”.191
[133] In Bernert, it was reiterated that “[l]itigants should not be left with the impression
that the judicial officer is hiding [their] interest in the case from them ”.192 This Court
went on to hold that where there is a reasonable apprehension that the decision -maker
has an attachment to the case or an interest in its outcome or the parties involved, they—
“must disclose [their] interest in the case, no matter how small or trivial that interest
may be . And in the event of any doubt, a judicial officer should err in favour of
disclosure.”193 (Emphasis added.)
[134] This case is distinguishable from Masuku and Goosen, where all facts necessary
for the assessment of bias were before the courts, either because they were public
knowledge or full disclosure had been made . The absence of disclosure may not
establish a reasonable apprehension of bias in and of itself, but where there is a nexus
between a prior association and the subject matter before a decision -maker, it may call
for an explanation. Full disclosure may “cast some evidentiary light on the ultimate
question of reasonable apprehension of bias” . 194 Transparency through disclosure
operates as an important safeguard in preserving the legitimacy of the decision-making
process. Given the paramount importance of public confidence to the Commission, the
caution that “in the event of any doubt, a judicial officer should err in favour of
disclosure” should be heeded.195
191 SARFU above n 19 at para 89.
192 Bernert above n 21 at para 56.
193 Id at para 63.
191 SARFU above n 19 at para 89.
192 Bernert above n 21 at para 56.
193 Id at para 63.
194 Ebner v The Official Trustee in Bankruptcy (2001) 205 CLR 337 at para 70.
195 Bernert above n 21 at para 63.
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Relationship within the NPA
[135] The Commission’s Terms of Reference clarify that it is investigating both
alleged external influences on the NPA as well as alleged improper conduct within the
NPA.196 These Terms further task the Commission with making findings, reports and
recommendations on whether the government should take further actions, including
possible investigations and prosecution , regarding the above. 197
Commissioner Khampepe’s responsibilities now may call on her to make adverse
findings, not only against her former organisation, but also against her former
colleagues in respect of their conduct at the organisation which they served. Prior
associations could form the basis of a reasonable apprehension of bias where “the
subject-matter of the litigation in question arises from such associations or activities”.198
That is what has occurred in the present case.
Position at the TRC
[136] The applicants also rely on the fact that Commissioner Khampepe served on the
TRC and specifically its Amnesty Committee. Commissioner Khampepe served both
on the TRC, from which the TRC cases were referred, and at the NPA, to wh ich the
cases were referred. The recusal ruling finds that there is a conceptual distinction
between the work of the TRC, which decided amnesty applications and referred certain
cases to the NPA, and the NPA’s subsequent handling of those cases. 199
[137] I accept that a distinction exists between the work of the Amnesty Committee
and the subject matter before the Commission. However, the two are not unrelated, as
it is common cause that many TRC cases are the same cases that were processed by the
Amnesty Committee and subsequently referred to the NPA by the TRC. While the
Amnesty Committee and the NPA focus on different aspects or stages of these cases,
196 See Terms of Reference above n 7 at para 1.1-1.2.
197 Id at para 1.3.
198 SARFU above n 19 at para 76.
199 Recusal ruling at paras 45 and 53.
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the significant overlap, including the factual matrix and the persons involved, cannot be
overlooked.
[138] A reasonable apprehension of bias may be founded on the fact that a
decision-maker previously acquired personal knowledge of the present matter in a past
role.200 It is common cause that Commissioner Khampepe was involved in deciding
several amnesty applications that became the TRC cases and that she played a role in
the referral of some TRC cases to the NPA. For example, she was part of the panels
that refused amnesty for the “ANC 37”, which includes the applicants, and the alleged
perpetrators responsible for the murder of Richard and Irene Motasi. Due to this
personal involvement, Commissioner Khampepe ha s first-hand knowledge regarding
the origin and progression of some of the very cases that are before the Commission.
Communication with Advocate Semenya
[139] Commissioner Khampepe also did not disclose material information on the
coaching allegations related to Advocate Semenya. These include allegations that on
or about 5 November 2025, Commissioner Khampepe used her private email address to
communicate with Advocate Semenya, where she re ferred him to legal research or
authorities that may assist him in the Semenya recusal application.
[140] I agree with the High Court minority that the applicants have not provided
evidence of the existence of these alleged improper communications. In particular,
President Zuma alleged to have obtained evidence through a whistleblower, yet did not
produce this evidence. These unsubstantiated allegations do not establish a reasonable
apprehension of bias.
[141] It must be noted that Commissioner Khampepe did not admit or deny the
existence of private communications between her and Advocate Semenya. She did not
disclose the content of communications between them during the relevant time . An
200 Bernert above n 21 at para 78.
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essential requirement of justice being seen to be done is that “the presiding judicial
officer should have no communication whatever with either party except in the presence
of the other” to “avoid the appearance that justice is being administered in secret”.201 I
accept that the context of an investigative commission differs from that of adversarial
litigation. This distinction, however, carries considerably less force in the Semenya
recusal application, where Commissioner Khampepe performed an arbitral role. The
applicants do not suggest that general communications between the commissioners and
the evidence leaders are impermissible . Their concern instead centres on alleged
communications between a decision -maker in a recusal application
(Commissioner Khampepe) and the person whose recusal is sought
(Advocate Semenya) about that recusal application.
[142] In these circumstances, the lack of disclosure may raise concerns. The applicants
have specified the alleged period and the mode of communication between
Commissioner Khampepe and Advocate Semenya. Rather than dispelling these
allegations in a transparent manner, Commissioner Khampepe chose not to disclose the
communications.
Appointment to the Commission
[143] President Ramaphosa, in his explanatory affidavit in the High Court, asserts that
he was unaware of Commissioner Khampepe’s prior associations with the NPA and the
TRC, and that he would not have appointed her had he been aware. The applicants have
not sought to review President Ramaphosa’s decision to appoint
Commissioner Khampepe.
[144] However, President Ramaphosa’s claim of unawareness demonstrates not only
that there was a lack of disclosure but that such non -disclosure had a material impact
on his decision to appoint Commissioner Khampepe. It may well be said that there was
201 Roberts above n 164 at para 23.
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a duty on Commissioner Khampepe to disclose her prior roles to President Ramaphosa
so that he could have taken an informed decision.
Conclusion on bias
[145] It is irrelevant whether this Court believes that Commissioner Khampepe has the
ability and integrity to bring a dispassionate mind to bear and discharge her mandate at
the Commission with the requisite impartiality.202 The apprehension of bias is one that
a reasonable layperson who is concerned with the administration of justice would have,
not that of a judicial officer or trained lawyer familiar with judicial process. 203 This is
all the more true in the context of this Commission, where the restoration of public
confidence is central to its establishment and purpose. As the Appellate Division held
in BTR Industries:
“Provided the suspicion of partiality is one which might reasonably be entertained by
a lay litigant . . . [i]f suspicion is reasonably apprehended, then that is an end to the
matter.”204
[146] I repeat the salient facts. Commissioner Khampepe was among the most senior
officials at the NPA during the period when it was receiving and processing the TRC
cases. The Commission has called witnesses to testify on the affairs that occurred at
that organisation at that time. Despite her level of seniority, she claims to be unaware
of any specific policy on the prosecution of the TRC cases during her tenure. There is
the added fact that she was also a member of the TRC, the non-prosecution of whose
referrals the Commission is tasked to investigate. She is in a position to make findings
in respect of her former organisation and former colleagues in that organisation. Had
she not been the Chairperson, she may well be a competent witness herself. It is
indisputable that the multiplicity of ways in which the matter touches
202 To this end, I agree with the sentiments of Mokgoro J and Sachs J in SACCAWU above n 22 at para 57.
203 Roberts above n 164 at para 36.
203 Roberts above n 164 at para 36.
204 BTR Industries South Africa (Pty) Ltd v Metal and Allied Workers Union [1992] ZASCA 85; 1992 (3) SA 673
(AD) at 694I-695A.
THERON J
62
Commissioner Khampepe’s p rofessional experiences are, at the very least, quite
remarkable. Can it be said that the ba re denial of bias would satisfy a reasonable
member of the public that the cumulative effect of all of these facts is of no moment?
[147] I am of the view that a fair -minded observer, familiar with the correct facts (to
the extent that they were disclosed), would reasonably apprehend that
Commissioner Khampepe’s prior associations with the organisations whose work is
under the Commission’s inquiry, and her proximity to the Commission’s investigative
subject matter, might preclude her from bringing a sufficiently disinvested mind to bear.
She is simply “too close to the fire”. Adding to this apprehension of bias is her lack of
disclosure in respect of the multiple connections that are relevant to the assessment of
her alleged bias. Had Commissioner Khampepe cleared the mist, the applicants may
not have had a strong case for her recusal. Under present circumstances, I am of the
view that a reasonable apprehension of bias in respect of Commissioner Khampepe has
been established, and the Commission, tainted by such apprehension, cannot serve its
function.
Condonation application by the NPA
[148] The NPA seeks condonation for the late filing of an explanatory affidavit. The
test is whether it is in the interests of justice to grant condonation. Th is Court must
consider, among other things, the nature of the relief sought, the extent and cause of the
delay, the effect of the delay on the administration of justice and other litigants, the
reasonableness of the explanation for the delay, the importance of the issue to be raised
and the prospects of success.205
[149] A party seeking condonation before this Court must adequately address all the
necessary factors to the satisfaction of this Court. The delay in this matter is
approximately two months. Having regard to the nature and urgency of the matter, a
approximately two months. Having regard to the nature and urgency of the matter, a
205 Director of Public Prosecutions, Johannesburg v Schultz; Director of Public Prosecutions, Bloemfontein v
Cholota [2026] ZACC 3; 2026 (3) BCLR 175 (CC) at para 105.
THERON J
63
two-month delay is substantial and unreasonable, particularly for an organ of state. The
NPA has the resources to abide by this Court’s timelines. The explanatory affidavit and
written submissions were filed less than two weeks before the hearing.
[150] The NPA’s explanation for the delay is that it had to reconsider its initial position
to abide by the decision of this Court . It further experienced practical difficulties in
obtaining the necessary internal approvals and instructions, and in finalising the papers.
The granting of condonation is a judicial discretion. As a public litigant, the NPA
cannot escape these timelines with reference to internal delays or practical
difficulties.206 Additionally, the issues that the NPA’s explanatory affidavit addresses –
pertaining to President Zuma’s interlocutory application to compel – are canvassed by
records already before this Court in this matter. Therefore, condonation is refused. As
the Calata Group opposed the NPA’s condonation application, the NPA should bear the
Calata Group’s costs.
Costs
[151] It is trite that costs are awarded at the discretion of the court. In light of the
second and third judgments, both the applicants and the respondents have had some
measure of success. In the circumstances, each party should bear their own costs.
Second and third judgments
[152] I have read the judgments of my Colleagues Nuku AJ and Rogers J. For the
reasons set out in this judgment, I disagree with their conclusion on the recusal
applications.
[153] Had I commanded the majority, I would have made the following order:
1. Leave to appeal directly is granted.
206 Id at para 108.
THERON J / NUKU AJ
64
2. The appeal is upheld and the order of the High Court of South Africa,
Gauteng Division, Johannesburg, is set aside and replaced with the
following:
“(a) The point in limine raised by the first to fifth respondents in respect
of section 47(1) of the Superior Courts Act 10 of 2013 is dismissed.
(b) The application to review the ruling, delivered on 30 January 2026
by the Chairperson of the Judicial Commission of Inquiry into
Allegations Regarding Efforts or Attempts Having Been Made to
Stop the Investigation or Prosecution of Truth and Reconciliation
Commission Cases dismissing the recusal applications, is upheld.”
3. The seventh respondent’s application for condonation for the late filing
of the explanatory affidavit is refused with costs.
4. Except for the order in paragraph 3, each party is to pay their own costs
in the High Court and in this Court.
NUKU AJ (Dambuza J, Kollapen J and Majiedt J concurring):
Introduction
[154] I have had the benefit of reading the judgment of my Colleague Theron J
(first judgment). I adopt the facts as set out in that judgment. I agree that this matter
engages this Court’s jurisdiction and that leave to appeal directly should be granted. I
also agree with the first judgment’s reasoning and conclusion—
(a) on the section 47(1) point in limine;
(b) that we should entertain the merits of the review application; and
(c) that condonation of the NPA’s late filing of its explanatory affidavit
should be refused.
However, I diverge from the first judgment on whether the review application should
succeed. This is for two reasons: (i ) the applicants did not properly plead procedural
NUKU AJ
65
rationality as a ground of review; and (ii) the facts pleaded by the applicants fall short
of establishing a reasonable basis to apprehend that Commissioner Khampepe is biased.
[155] Ordinarily, once it is concluded that a sustainable ground of review has not been
pleaded, that should be the end of the matter. However, I address the merits of the
recusal application in case I am wrong that no sustainable ground of review has been
pleaded. In what follows, I explain the two reasons for my divergence from the first
judgment.
Inadequate pleadings on procedural rationality
[156] The first judgment does not determine whether bias is a standalone ground of
review under the principle of legality. It instead considers the issue of procedural
rationality. It holds that “the presence of a reasonable apprehension of bias, if it exists,
is not rationally related to the achievement of the Commission’s purposes ”.207 The
first judgment accepts that the applicants’ pleadings on procedural rationality are not
exemplary.208 However, it asserts that “[the applicants] are of the view that it would
offend the principle of legality for Commissioner Khampepe to exercise her public
powers if a reasonable apprehension of bias against her exists” and that “their pleadings
related to this purported apprehension are detailed”.209 On this basis the first judgment
is of the view that this Court has the necessary information to analyse this submission.210
Thereafter, it discusses the applicable principles with reference to various decisions of
this Court, which explain that procedural rationality concerns the evaluation of the
relationship between means and ends. This occurs in instances where a public
functionary is vested with power to achieve a particular object, and the inquiry is
whether the means employed by that public functionary are rationally related to the
achievement of that particular objective. It is thus necessary to examine the case
achievement of that particular objective. It is thus necessary to examine the case
pleaded by the applicants to determine whether this distillate results from the pleadings.
207 See the first judgment at [103].
208 Id at [94].
209 Id.
210 Id.
NUKU AJ
66
[157] Before this Court, President Zuma has asked for the following relief: upholding
the appeal itself and granting the relief sought. Despite this ambiguity, I understood the
relief sought by President Zuma to be that this Court should find that it was not
necessary for him to have obtained the consent of the Chief Justice before institutin g
the review proceedings against Commissioner Khampepe , and that this Court should
grant the review application which the majority in the High Court had not determined.
In President Mbeki’s notice of motion before this Court, he simply asks this Court to
set aside the recusal decision based on PAJA or, in th e alternative, the principle of
legality. Thus far, it is clear that the attack targets the recusal decision.
[158] The first judgment observes that neither applicant has pleaded sufficient facts to
enable this Court to determine whether the recusal decision constitutes administrative
action under PAJA. For that reason, among other s, it declines to determine that issue
and, as a result, does not consider the applicants ’ PAJA grounds of review. This, in
turn, leaves the applicants’ arguments grounded in legality review.
[159] In the High Court, President Zuma pleaded that “under the principle of legality,
the decision of Commissioner Khampepe is reviewable as it was not taken lawfully,
rationally, and in a manner consistent with the constitutional requirements of
accountability, openness and fairness”. The first judgment correctly identifies the
applicants’ point that the recusal decision should have been made by all three members
of the Commission as falling within the legality review, because it questions the
decision-maker’s power. Having considered that point on its merits, it concludes that
the point is bad in law, a conclusion with which I align myself.
[160] On rationality, President Zuma’s pleaded case is an attack on the recusal
[160] On rationality, President Zuma’s pleaded case is an attack on the recusal
decision, which is said not to have been taken rationally. In my view, this is an attack
based on substantive rationality which is quite distinct from procedural rationality. The
pleaded case does not identify the power vested in Commissioner Khampepe, the
NUKU AJ
67
purpose for which that power is conferred and the relevant considerations she ignored
in exercising that power to achieve that purpose.
[161] The grounds of review under the principle of legality, as articulated by
President Mbeki, are—
(a) misapplication of the correct test for a reasonable apprehension of bias
arising from prior associations and roles;
(b) that Commissioner Khampepe made her ruling based on subjective
considerations;
(c) erroneous reliance on the 2003 temporal boundary;
(d) endorsement of an undisclosed and procedurally irregular
arrangement regarding Commissioner Khampepe’s relationships with
Advocate Semenya and Advocate Varney;
(e) failure to meaningfully engage with the realities of institutional bias;
(f) adoption of an unlawful approach to reasons and procedural fairness;
(g) uncritical endorsement of irregular conduct;
(h) reliance on alleged delay in bringing the recusal application;
(i) Commissioner Khampepe’s failure to consider the implications of her
prior adjudication of amnesty applications; and
(j) improper emphasis on time pressure and speculative disruption.
[162] As with President Zuma, none of the grounds pleaded by President Mbeki
identify the power vested in Commissioner Khampepe, the purpose for which that
power is conferred and the relevant considerations she ignored when exercising that
power to achieve that purpose. Instead, most of these grounds are directed at
challenging the substantive correctness of the recusal decision and thus cannot ground
a legality review based on procedural irrationality.
[163] Based on all of the above, I have difficulty with the first judgment’s conclusion
that the applicants have pleaded a case based on procedural rationality. In my view, the
deficiencies in the applicants’ pleading s should result in the dismissal of the review
NUKU AJ
68
application. This is consistent with the first judgment’s holding regarding the review
grounds based on PAJA, because the review would have been dismissed if it had relied
solely on the PAJA grounds due to the deficiencies in the pleaded case. As stated above,
I align myself with the first judgment in how it disposed of the other grounds of review
under the principle of legality. I am of the view that it is unnecessary to consider them
individually.
[164] The difficulty in this case is: what does a person do when summoned to appear
before a commission of inquiry chaired by someone perceived as biased? The obvious
answer is that such a person may seek to review the President’s decision to appoint the
Commissioner concerned on procedural legality grounds. In such a case, the court
would be in a position to determine, on the pleaded facts, whether a reasonable
apprehension of bias has been established in respect of the Commissioner concerned,
and, if so, that the decision to appoint them would suffer from procedural irrationality.
But this is not the pleaded case, and that puts this Court in an invidious position where
it may be constrained to enter into the merits of the review on what may be considered
a technical legal basis. This may well be what has compelled the first judgment to resort
to procedural rationality as a basis upon which to entertain the merits of the review.
[165] The first judgment upholds the review on one ground based on the reasonable
apprehension that Commissioner Khampepe might be biased because of the prior roles
she occupied at the TRC and the NPA , as well as her failure to explain the roles she
played at these institutions. Assuming I am wrong in finding that procedural
irrationality has not been properly pleaded, I am, in any event, not persuaded that the
facts pleaded by the applicants have esta blished a reasonable basis to apprehend that
Commissioner Khampepe is biased. In considering whether a reasonable apprehension
Commissioner Khampepe is biased. In considering whether a reasonable apprehension
of bias has been established, I assess the issue on the test for a reasonable apprehension
of bias adopted in the first judgment.
NUKU AJ
69
Have the applicants made out a case for a reasonable apprehension of bias?
[166] The first judgment has set out the facts pleaded by the applicants to substantiate
their allegations of reasonable apprehension of bias . I agree with that setting -out.
However, I consider it necessary to outline the arguments advanced by both applicants
to determine if they are supported by the evidence presented.
[167] President Zuma argues that there is no merit in the defence that the
Commission’s subject matter has no relationship to the tasks performed by
Commissioner Khampepe while she was working for either the TRC or the NPA
because there is c lear evidence of this i n the calling of her colleague s in the HRIU,
Judge Saldanha and her former senior in the NPA, Mr Ngcuka, as witnesses to testify
before her. He then says that i t follows as a matter of simple logic that, first, their
evidence is presumed to be relevant to the subject matter of the inquiry and , second,
Commissioner Khampepe is as competent and compellable a witness as they are . He
concludes that, based o n both of these grounds, she is disqualified from sitting on the
Commission on the principle of nemo iudex in sua causa.
[168] In support of his argument, President Zuma refers to a letter dated
14 November 2025 from the Chief Evidence Leader, Advocate Semenya, to
Judge Saldanha, requesting his assistance in providing information to aid the
Commission. The letter records that Judge Saldanha, as the head of his unit, “would
have had access to information concerning decisions, discussions or policies affecting
the investigation and prosecution of TRC-related cases”.
[169] Judge Saldanha responded to the letter referenced above, noting that the Terms
of Reference of the Commission cover the period from 2003, and advising that his
service at the NPA was in 1999, which falls outside the Commission ’s Terms of
Reference. He also stated that he recalled an interim report submitted to the NDPP in
Reference. He also stated that he recalled an interim report submitted to the NDPP in
1999, which addressed matters the HRIU was considering at the time. Finally, he stated
that he did not possess any documents or records relating to the TRC cases referred by
the Amnesty Committee for investigation and prosecution.
NUKU AJ
70
[170] Whilst President Zuma may be correct that it can be presumed from the letter
dated 14 November 2025 that Judge Saldanha ’s evidence is relevant to the
Commission’s investigation, Judge Saldanha’s response dispels that presumption. It is
clear from Judge Saldanha’s response that he cannot be of any assistance to the
Commission, and it is difficult to see how the position of Commissioner Khampepe,
whose tenure at the NPA coincided with that of Judge Saldanha, can be different.
Indeed, it would have been different if there had been no response from Judge Saldanha,
or if he had provided a response relevant to the Commission’s investigation. When the
letter of 14 November 2025 is considered together with Judge Saldanha’s response, all
that remains is that Judge Saldanha was at the HRIU in 1999, with no indication of his
involvement in matters relevant to the Commission’s subject matter, and that
Commissioner Khampepe is in no different a position.
[171] Mr Ngcuka also provided a statement to the Commission, stating that he was the
NDPP between 1998 and 2004. He explains that the HRIU’s mandate was to review
and assess whether there was sufficient evidence for the NPA to prosecute anyone and
to identify which cases required further investigation. He explains further that the
HRIU provided its report on which cases could be prosecuted and which could not ;
thereafter, he decided to refer all the TRC-related cases to the Special National Projects
Unit, a unit within the Directorate of Special Operations (Scorpions) that operated until
approximately 2003. Mr Ngcuka goes to great lengths to explain what was happening
within the NPA during his tenure, and there is no evidence from the time when
Commissioner Khampepe was at the NPA suggesting that her role there would have
exposed her to matters relevant to the Commission’s investigation. It is no wonder that
President Zuma’s argument goes no further than relying on mere institutional
association.
President Zuma’s argument goes no further than relying on mere institutional
association.
[172] The question is whether a reasonable person having access to the statements from
both Judge Saldanha and Mr Ngcuka would reasonably apprehend that
Commissioner Khampepe is biased. The existence of a reasonable apprehension of bias
NUKU AJ
71
must be assessed based on the content of the knowledge available to a reasonable
observer. At first glance, it might have been concerning to see persons who worked
with Commissioner Khampepe at the TRC being called to the Commission, but the
statements they provided do not offer any evidence supporting a reasonable
apprehension of bias on Commissioner Khampepe’s part. In the final analysis, what
remains is the fact that Commissioner Khampepe was once associated with the NPA ,
without any evidence of what her role entailed that would have brought her in close
proximity to the subject matter of the Commission.
[173] President Zuma also argues that it is common cause that there are members of
the Calata Group who are allegedly victims of persons who were denied amnesty by the
Amnesty Committee. In this regard, he refers to the affidavit filed by
President Ramaphosa, in which the latter states that he understands that
Commissioner Khampepe was a member of the Amnesty Committee when the
Chairperson of that Committee refused amnesty to the applicants. In this regard, there
is some specificity to the role played by Commissioner Khampepe, but the question is
whether that role relates to the Commission’s subject matter.
[174] The Amnesty Committee considered applications for amnesty and referred those
whose applications were denied to the NPA for investigation and possible prosecution.
The first judgment acknowledges a distinction between the Amnesty Committee’s work
and the Commission ’s subject matter, and, in my view, this should be the end of the
inquiry.211 However, the first judgment goes further and considers the progression of
the matters from the Amnesty Committee to the NPA sufficient to establish the
necessary link. That, in my view, does not accord with the test in Bernert, which the
first judgment relies on for this conclusion, because that test requires the decision-maker
first judgment relies on for this conclusion, because that test requires the decision-maker
to have acquired personal knowledge relevant to the subject matter . The progression
of matters from the Amnesty Committee to the NPA, without evidence that the
decision-maker acquired knowledge relevant to the Commission ’s subject matter, is
211 See the first judgment at [137].
NUKU AJ
72
insufficient. It is necessary for the applicants to present evidence that
Commissioner Khampepe, during her time at the Amnesty Committee, acquired
personal information relevant to the subject matter of the Commission, and the
applicants have not done so.
[175] The next point President Zuma relies on is that Commissioner Khampepe failed
to respond to the invitations to explain her role in the NPA, and related ly failed to
disclose these matters to the President, which would have prevented the President from
appointing her because of the obvious conflict. He argues that these failures only serve
to aggravate the case for a reasonable apprehension of bias.
[176] The argument that Commissioner Khampepe failed to disclose her prior roles at
the TRC and the NPA, without evidence showing that those roles were relevant to the
subject matter of the Commission, is not sustainable and risks shifting the burden of
proof to her, when it is the applicants who have a duty to present evidence substantiating
a claim that grounds their apprehension of bias. The President has filed an explanatory
affidavit stating that he would not have appointed Commissioner Khampepe had he
been aware of the roles she had previously held at the TRC and the NPA . That is no
more than a mere personal opinion and is not the test for establishing a reasonable
apprehension of bias.
[177] President Zuma’s final argument is that t here is equally no merit in the defence
that the mere fact that the Terms of Reference mention 2003 as the date from which the
decisions not to prosecute were made, somehow places a temporal limit on the
necessary investigation. He argues that t he Terms of Reference address only the date
from which the prosecutions were allegedly stopped, not when they were initiated ,
because, on the evidence, the prosecutions would have been contemplated, considered
and otherwise dealt with long before the impugned stoppage thereof. That prior period
and otherwise dealt with long before the impugned stoppage thereof. That prior period
includes Commissioner Khampepe’s stint at the NPA alongside Judge Saldanha.
NUKU AJ
73
[178] The issue of the 2003 temporal boundary must be considered in light of all the
relevant evidence presented by the applicants. A logical connection must be established
between Commissioner Khampepe’s prior roles and the Commission ’s subject
matter.212 Only thereafter does the issue of the tempora l boundary become relevant to
whether it can affect the reasonableness of the apprehension. Without establishing that
connection, the issue of the 2003 temporal boundary plays an insignificant role.
[179] President Mbeki explains that his application for the recusal of
Commissioner Khampepe was based on the following two grounds. First,
Commissioner Khampepe’s past institutional roles as a Commissioner and a member of
the Amnesty Committee between 1998 and 2001, and as a Deputy NDPP in the NPA
between 1998 and 1999. Second, Commissioner Khampepe’s handling of
conflict-of-interest objections pertaining to the Commission ’s Chief Evidence Leader,
Advocate Semenya, as well as her endorsement of a procedurally irregular arrangement
between Advocate Semenya and Advocate Varney, who is counsel for the Calata
Group, an arrangement which he claims came about as a result of opaque and bilateral
interactions between Advocate Semenya and Advocate Varney.
[180] I have addressed the complaint regarding Commissioner Khampepe’s prior roles,
and President Mbeki’s submissions are largely aligned with President Zuma’s. On the
issue of the 2003 temporal boundary, President Mbeki argues that, while the Terms of
Reference require the Commission to investigate alleged interference with the
investigation and prosecution of the TRC cases since 2003 (and not before), the reliance
on a “temporal boundary ” beginning in 2003 is unsustainable and irrational. The
context in which the inquiry occurs is relevant to the Commission. It is common cause
that the TRC referred the TRC cases to the NPA in 1998. It is also common cause that,
that the TRC referred the TRC cases to the NPA in 1998. It is also common cause that,
after the NPA took ownership of these cases, it established a specialised unit (the HRIU)
to investigate and prosecute them – this also occurred in 1998. For the Commission to
understand how the alleged influence occurred, it would need to understand the
212 Bernert above n 21 at para 57.
NUKU AJ
74
institutional history and prosecutorial treatment of those cases prior to 2003. The
Commission must appreciate this much. As demonstrated by Modiba J (in an analysis
of the facts), this assertion is inconsistent with the Commission ’s own objective
conduct.213
[181] President Mbeki’s submissions are notably couched in general terms, without
providing the specificity needed to connect Commissioner Khampepe’s prior
institutional roles to the Commission’s subject matter. To be clear, there are three roles
that are relevant to this application: the role played by Commissioner Khampepe at the
TRC, particularly in the Amnesty Committee; the role she played at the NPA; and her
role as the Chairperson of the Commission tasked with investigating allegations
regarding efforts or attempts made to stop the investigation or prosecution of the T RC
cases.
[182] As noted, the first judgment accepts the distinction between the work of the
Amnesty Committee and that of the Commission. 214 While the NPA and the HRIU
were involved in investigating the TRC cases, there is no evidence that, between 1998
and 1999, when Commissioner Khampepe was at the NPA, she acquired personal
information relevant to efforts or attempts to stop the investigation or prosecution of the
TRC cases, which is the subject matter of the Commission.
[183] President Mbeki’s second complaint, concerning Commissioner Khampepe’s
handling of conflict -of-interest objections regarding Advocate Semenya and her
endorsement of an arrangement between him and Adv ocate Varney, is even less
convincing and appears to be nothing more than a makeweight argument.
Commissioner Khampepe will be required to make rulings from time to time on issues
raised by the parties appearing before the Commission, and a party’s dissatisfaction
213 See High Court minority above n 1 at para 127.
214 See the first judgment at [137].
NUKU AJ
75
with any of those rulings cannot, without more, be sufficient to ground a reasonable
apprehension of bias.
[184] In conclusion, the applicants failed to adduce evidence supporting their
apprehension of bias. Therefore, there is no basis to conclude that
Commissioner Khampepe will be unable to bring an impartial mind to the evaluation of
the evidence before her, or that she would be beholden to institutional associations that
are decades old. Accordingly, I hold that no reasonable apprehension of bias has been
established in this case.
[185] The first judgment correctly sets out the legal position that, for the applicants to
succeed, they must establish a nexus between the decision -maker and the subject
matter.215 In grappling with this question, it then asks: “[i]n the eyes of a reasonable
and objective observer, do the se facts establish a nexus between
Commissioner Khampepe’s role at the NPA and the mandate of the Commission? ”216
Thereafter, it answers the question in the affirmative and explains why the answer must
be so. This, in my view, is where the first judgment errs, as I explain below.
[186] There is a difference between the standard that requires an applicant to establish
a nexus between the decision-maker’s role and the subject matter, on the one hand, and
the question posed in the first judgment about whether a nexus has been established in
the eyes of a reasonable , objective observer. The standard requires that the nexus be
established by evidence, but on the first judgment’s premise, the establishment of the
nexus is not a matter of evidence but an observation by a reasonable and objective
observer – that is, an appearance. This point is made clear by this Court in Bernert,
when it stated that “[t]hese facts are necessary in order to assess the reasonableness of
the apprehension of bias and they may well demonstrate whether there is any logical
215 Id at [117].
216 Id at [121].
NUKU AJ
76
connection between the interest held and the feared deviation from impartial
adjudication”.217
[187] The first judgment’s incorrect premise is clear from its assessment, which
focuses on the roles Commissioner Khampepe played while at the TRC and the NPA,
without any attempt to assess, on the basis of evidence rather than appearance, whether
the nexus has been established. Having assessed the roles , it concludes that “her
prominent position within the NPA, her wide powers as a Deputy NDPP and her
background with the TRC all form part of the nexus”.218
[188] It is necessary to recall what this Court stated in Masuku regarding the reasonable
apprehension of bias and prior associations. It stated:
“[T]he test for reasonable apprehension of bias requires more than mere association
with a matter. The relevant connection must call into question the ability of the judge
to apply their mind in an impartial manner to the case before them.”219
On this basis, it would be insufficient to ground a reasonable apprehension of bias on
mere institutional associations. More is required. The applicants made generalised
averments that Commissioner Khampepe occupied positions in the Amnesty
Committee and the NPA. Unfortunately, these generalised averments cannot constitute
grounds for recusal on a reasonable apprehension of bias. They do not indicate that
Commissioner Khampepe will be unable to bring an independent and impartial mind to
bear on the evidence before her.
Costs
[189] I agree with the first judgment’s conclusion on costs.
217 Bernert above n 21 at para 57.
218 See the first judgment at [122].
219 Masuku above n 20 at para 69.
NUKU AJ / ROGERS J
77
Order
[190] In conclusion, I agree with the proposed order of my Colleague, Theron J, on
jurisdiction, leave to appeal directly, the interpretation of section 47(1) of the Act, the
NPA’s condonation application and costs. Taking into account the third judgment by
my Colleague, Rogers J, this Court reaches unanimity on these issues. A majority of
this Court holds that the review application falls to be dismissed. Therefore, I make the
following order:
1. Leave to appeal directly is granted.
2. The appeal is partially upheld. The order of the High Court of South
Africa, Gauteng Division, Johannesburg is set aside and replaced with the
following:
“(a) The point in limine raised by the first to fifth respondents in respect
of section 47(1) of the Superior Courts Act 10 of 2013 is dismissed.
(b) The application to review the ruling, delivered on 30 January 2026,
by the Chairperson of the Judicial Commission of Inquiry into
Allegations Regarding Efforts or Attempts Having Been Made to
Stop the Investigation or Prosecution of Truth and Reconciliation
Commission Cases dismissing the recusal applications, is
dismissed.”
3. The seventh respondent’s application for condonation for the late filing
of the explanatory affidavit is refused with costs.
4. Except for the order in paragraph 3, each party is to pay their own costs
in the High Court and in this Court.
ROGERS J
[191] I have had the benefit of reading the judgments of my Colleagues Theron J
(first judgment) and Nuku AJ (second judgment). I agree with the order, though not all
ROGERS J
78
of the reasoning, in the second judgment. My views are summarised below. Time and
other circumstances do not permit me to write a full judgment.
[192] The proceedings of the Commission are not subject to review in terms of PAJA
as they do not meet the test in the definition of “administrative action” read with the
definition of “decision” in PAJA. This is so at least for the reason that the acts of such
a commission are not “of an administrative nature”. Since we have all the facts, and
since the question is one of law, it is not a matter that we should leave open merely
because it has perhaps been insufficiently argued. The approach to the review depends
vitally on whether PAJA is applicable.
[193] Although, in my view, PAJA is inapplicable, the Commission’s proceedings are
subject to review in terms of legality. This is so because, as the first judgment correctly
notes, 220 the Commission exercises public power and performs a public function.
Among other things, the Commission may compel people to give evidence and provide
documents, with criminal sanctions if they do not comply. It must furnish a report at
the end of its proceedings. Although the report does not adjudicate rights, it may be
very damaging to the reputations of implicated persons.
[194] Bias (in which I include a reasonable apprehension of bias) should be recognised
as a self-standing ground of legality review in the case of commissions of inquiry. It is
not necessary to decide to what extent bias is a ground of legality review in other
contexts. If bias were not a self-standing ground of review in the case of commissions
of inquiry, there would have been no point in asking Commissioner Khampepe to recuse
herself, because it would not have been unlawful for her to remain as a commissioner
even if she was biased. I cannot accept that this is the law.
[195] For the reasons just stated, I do not consider that bias needs to be shoehorned
[195] For the reasons just stated, I do not consider that bias needs to be shoehorned
into procedural irrationality, as the first judgment does. As the second judgment notes,
220 See the first judgment at [87].
ROGERS J
79
it might be procedurally irrational for a President to appoint a commissioner who is
biased,221 but that is not the case advanced by the applicants. Commissioner Khampepe
herself does not seem to have proceeded in a procedurally irrational way. The
applicants might say that her recusal ruling was substantively irrational, but for the
reasons briefly stated below, the focus on the rationality of her ruling is misconceived.
[196] If, as I consider to be the case, bias is a self -standing ground of legality review
in the case of commissions of inquiry, a court must test bias objectively. The question
is not whether a commissioner who has declined to recuse herself acted rationally o r
reasonably in reaching that conclusion. There is no law that confers on a commission
of inquiry or an individual commissioner the power, in place of the courts, to determine
whether there is a reasonable apprehension of bias.
[197] It is undoubtedly sensible for a person who wants to have a commissioner
removed on grounds of bias to lay the facts before the commissioner and request her to
withdraw. If she does not do so, however, the court before which a challenge is brought
must decide for itself whether, on the evidence, bias has been established. 222 That is
what a review court would do in a variety of other circumstances, for example where
there is a dispute as to the existence of a jurisdictional fact or about procedural fairness
(if this ground of review is applicable).
[198] There might even be a legal challenge without a prior recusal ruling, since there
is no absolute bar preventing a disgruntled litigant from approaching a court directly
without first asking a commissioner to recuse herself. A direct challenge might be the
only option where the facts supporting bias emerge late in the day. Whether or not there
221 See the second judgment at [164].
222 This is in line with Canadian authorities to the effect that the standard of review in such circumstances is
correctness, not reasonableness: Communication, Energy and Paperworkers Union of Canada Local 60N v Abitibi
Consolidated Company of Canada 2008 NLCA 4 (CanLII ) at para 11; Joyce v N ewfoundland and Labrador
Chiropractic Board 2008 NLTD 144 (CanLII) at para 33; Canadian Pacific Railway Company v Canada
(Attorney General) 2018 FCA 69 (CanLII); [2019] 1 FCR 121 at paras 34 and 55; Transport Car-Fré Ltée v
Lecours 2018 FC 1133 (CanLII) at para 35; and Adeniji v Canada (Citizenship and Immigration) 2026 FC 799
(CanLII) at paras 11-12.
ROGERS J
80
has been a prior request for recusal, the test in the review court is the same: objectively
assessed, are the proceedings of the commission lawful, having regard to the alleged
bias of one of the commissioners?
[199] In the present case, the applicants frame d their case as a challenge to the
reasonableness or rationality of Commissioner Khampepe’s recusal ruling. In my view,
that was incorrect, since its unstated premise is that Commissioner Khampepe had a
statutory power to decide on her own recusal, the question being whether she exercised
the power in a way that could be impugned in terms of PAJA or legality review. Despite
this misconception in the framing of the case, bias was fully canvassed in the evidence
and argument. The fact that the applicants place d bias in the wrong legal pigeonhole
should not be a basis for this Court to decline to decide the real issue on the correct legal
basis. The respondents cannot be prejudiced.s
[200] For the reasons just stated, I do not agree with the second judgment’s conclusion
that this case should fail at the level of pleading.223
[201] The fact that the proceedings of a commission are subject to review in terms of
legality does not mean that, when bias is raised in court proceedings, one must first find
some particular decision of the commission as a target of the review. The complaint in
such a case is that the biased commissioner cannot lawfully be part of the proceedings
of the commission, a commission that will inevitably exercise public powers and public
functions during the course of its proceedings up to the time it issues its report. In the
present case, recusal was sought at a time when the Commission had indeed already
exercised some of its public powers, not least the summoning of former
Presidents Zuma and Mbeki to give evidence. In his amended notice of motion in the
High Court, former President Mbeki specifically asked that the Commission’s
High Court, former President Mbeki specifically asked that the Commission’s
proceedings to date be declared unlawful, of no force or effect and thus a nullity.
223 See the second judgment at [163].
ROGERS J
81
[202] Finally, as to whether, objectively tested, bias was established on the pleadings
in the High Court, I agree with the second judgment’s conclusion that it was not.
For the First Applicant:
For the Second Applicant:
For the First to Fifth Respondents:
For the Sixth Respondent:
For the Seventh Respondent:
For the Ninth Respondent:
D C Mpofu SC , H B Matlhape ,
B N Buthelezi, K Monareng and
K Pama-Sihunu instructed by KMNS
Incorporated
N Maenetje SC, N Muvangua and
P Sokhela instructed by Boqwana Burns
Incorporated
S Pudifin-Jones and T Palmer instructed
by Seanego Attorneys Incorporated
G Budlender SC , J Bleazard and
D Pillay instructed by Webber Wentzel
Y S Ntloko and B Lukhele instructed by
Office of the State Attorney, Pretoria
I de Vos instructed by Office of the State
Attorney, Pretoria