Case  CCT 90/26
[2026] ZACC 34

Hearing Date: 29 June 2026 

Judgement Date: 31 August 2026

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On 31 August 2026, the Constitutional Court handed down judgment in a matter involving two urgent applications. The first was 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 application was for direct access.

There were three judgments in this matter. The first judgment, was penned by Theron J, with Mlambo DCJ, Mathopo J, and Mhlanta J concurring. The second judgment was penned by Nuku AJ, with Dambuza J, Kollapen J, and Majiedt J concurring. The third judgment was penned by Rogers J.

The applicants were two former Presidents: Mr Jacob Zuma and Mr Thabo Mbeki. The first respondent was Commissioner Sisi Khampepe, who was a Justice of this Court from 2009 until her retirement in 2021. In May 2025, President Ramaphosa appointed her 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 respondents also included the other two members of the Commission, retired Judge Frans Kgomo and Advocate Andrea Gabriel SC, the Commission’s Chief Evidence Leader: Advocate Ishmael Semenya SC, the National Prosecuting Authority (NPA) and the Calata Group: a collective term referring to families who had been seeking the prosecution of apartheid-era crimes that involved the torture and killing of their relatives.

After receiving notices to participate in the Commission’s proceedings, the applicants applied to the Commission seeking Commissioner Khampepe’s recusal. They raised concerns in respect of her prior institutional roles. These include Commissioner Khampepe having been a Commissioner of the Truth and Reconciliation Commission (TRC) between 1995 and 2001; a member of its Amnesty Committee, which decided amnesty applications; and the Deputy National Director of Public Prosecutions between 1998 and 1999. It was during this latter period that the TRC referred cases to the NPA for investigation and potential prosecution and the NPA established its Human Rights Investigation Unit (HRIU) to review and make recommendations on the TRC cases.

The applicants argued that, taken together, Commissioner Khampepe’s close institutional and decisional proximity to the essential backdrop to the Commission’s present mandate creates a reasonable apprehension of bias warranting her recusal.

They also raised alleged procedural irregularities which, in their view, evinced the appearance of bias. These include the allegations that Commissioner Khampepe endorsed an irregular witness-leading arrangement between Advocate Semenya and the lead counsel of the Calata Group and that she had improperly coached or assisted Advocate Semenya when his recusal was sought.

Commissioner Khampepe declined to recuse herself in a ruling issued on 30 January 2026. In that ruling, Commissioner Khampepe determined that the applicants failed to demonstrate a logical connection between her prior roles and the Commission’s present investigation. She emphasised that the Commission’s mandate is to inquire into alleged efforts to supress the TRC cases for the period since 2003. Commissioner Khampepe found a temporal boundary existed between this period and her tenure at the TRC and the NPA, which ended on or before 2001. Further, Commissioner Khampepe found that the allegations related to Advocate Semenya were not relevant to her ability to discharge her duties at the Commission.

The applicants approached the High Court on an urgent basis to review and set aside the recusal ruling. In the High Court, President Ramaphosa filed an explanatory affidavit stating that he did not know of Commissioner Khampepe’s prior roles at the NPA and the TRC and that he would not have appointed her had he been aware.

In an answering affidavit, the Commission respondents raised a preliminary point that the High Court lacked jurisdiction under section 47(1) of the Superior Courts Act 10 of 2013 (Act). Section 47(1) provides that no civil proceedings may be instituted against “a judge of a Superior Court” without the consent of the head of that court. The applicants neither sought nor obtained consent from the Chief Justice prior to instituting the review proceedings.

The Full Court produced two judgments. The majority accepted the section 47(1) preliminary point, and dismissed the review application. The majority reasoned that the section applies to all civil proceedings, including review applications. It held that section 47(1) does not distinguish between active and retired judges and found that chairing a commission of inquiry constitutes judicial service. The majority did not consider the merits of the review application.

The minority parted ways with the majority’s interpretation of section 47(1), which it saw as unduly formalistic. According to the minority, recusal applications are not new actions against judges but arise from existing proceedings. Applying this reasoning, the minority stated that the recusal applications for Commissioner Khampepe should not be treated as civil actions against her. The minority concluded that section 47(1) is inapplicable in the present case.

The minority then considered the merits of the review application. It found that Commissioner Khampepe acted beyond authority in deciding the recusal applications alone despite oral argument having been made before all members of the Commission. It reasoned that the applications should have been decided by the Commission collectively. The minority found that Commissioner Khampepe’s prior institutional roles were sufficient to raise a reasonable apprehension of bias..

First judgment

The first judgment, penned by Theron J, with Mlambo DCJ, Mathopo J, and Mhlanta J concurring, held that this Court had jurisdiction to hear the matter and that the interests of justice favoured granting leave to appeal directly.

Unanimously, this Court found that section 47(1) did not apply to Commissioner Khampepe. On a holistic interpretation, section 47(1) serves three related purposes. First, it shields judges from vexatious and frivolous litigation. Second, it ensures that the functioning of courts are not unduly undisrupted by civil proceedings against judges. Third, the section safeguards judicial independence by enabling judges to apply the law without fear, favour or prejudice. In these respects, section 47(1) operates in tandem with our common law by striking an appropriate balance between judicial independence and accountability, as well as the proper administration of justice.

Section 47(1) affords limited but not infinite protection to judges of Superior Courts. For a judge to be considered a “judge of a Superior Court” and thus protected by section 47(1), that judge must form part of the composition of a Superior Court. In terms of section 167(1) of the Constitution and section 4(1) of the Act, the Constitutional Court comprises the Chief Justice, the Deputy Chief Justice and nine other judges. Commissioner Khampepe ceased to be a judge as envisaged by section 167(1) upon her retirement; and was thus not a “judge of a Superior Court” for the purposes of section 47(1). Commissioner Khampepe’s role as the Chairperson of a commission of inquiry did not bring her within the ambit section 47(1) either. This was because a commission of inquiry was not a court of law.

The first judgment found that it is settled law that a statute can be used to interpret another statute only when the two are in pari materia (of the same subject matter). The term “service” and its definition in the Judges’ Remuneration and Conditions of Employment Act 47 of 2001 (Remuneration Act) does not extend section 47(1)’s ambit. The Superior Courts Act addresses the governance and functioning of the courts whereas the Remuneration Act provides a framework for the remuneration and conditions of employment of judges. The subjects of these two pieces of legislation are dissimilar and there is insufficient overlap to justify interpretative borrowing.

Having found section 47(1) inapplicable, the first judgment then found that it would not have been appropriate to remit the matter to the High Court due to the urgency of the case and the need to bring finality to it. While midstream reviews are generally disfavoured, the Court unanimously held that a complaint of actual or reasonably apprehended bias goes to the core of proceedings and is akin to a plea of jurisdiction, justifying judicial consideration.

Turning to the applications which sought Commissioner Khampepe’s recusal, the first judgment declined to exercise review jurisdiction under the Promotion of Administrative Justice Act 3 of 2000 (PAJA) because the applicants did not sufficiently plead that the recusal decision was of an administrative nature. However, since commissions of inquiry exercise public power, their conduct attract judicial scrutiny under the principle of legality.

On the question whether Commissioner Khampepe could decide recusal alone, the first judgment concluded that neither rule 11 of the Commission’s Rules nor this Court’s jurisprudence require recusal applications to be determined collectively. Rule 11 is silent on the power to decide recusal applications. While in SARFU, members of this Court decided recusal applications individually and collectively, it made clear that judges have jurisdiction over applications for their own recusal. Thus, the first judgment found that Commissioner Khampepe did not act unlawfully when deciding the recusal application by herself.

On bias, the first judgment noted that the question whether bias is a standalone ground of review under the principle of legality is a complex and novel question of law that had not been properly ventilated before this Court. Given the consequences that deciding the issue would have had on exercises of public power, the first judgment refrained from doing so. That notwithstanding, the first judgment considered that rationality, as a standard under the doctrine of legality, found application. Unlike PAJA, which applies only to decisions or the failure to take them, legality constrains all exercises of public power. The first judgment noted that the fundamental question in a rationality inquiry is whether the means employed are capable of achieving the given ends.

The first judgment considered this Court and the Supreme Court of Appeal’s judgments, which show that the demands of rationality depend on the circumstances of each case. The first judgment concluded that if the presence of actual or reasonably apprehended bias precluded an exercise of public power from achieving the purpose for which it was conferred, the exercise of public power would be irrational.

The first judgment observed that the Commission’s purposes were, amongst others, uncovering whether efforts or attempts were made to stop of the investigation and prosecution of the TRC cases and restoring public confidence. It concluded that these purposes cannot be served if the Chairperson of the Commission was tainted by a reasonable apprehension of bias.

6 The first judgment then considered whether a reasonable apprehension of bias existed in respect of Commissioner Khampepe. It stressed that the question was not whether there was actual bias or whether this Court thought that Commissioner Khampepe was capable of carrying out her mandate impartially. The question was whether a reasonable, objective and fair-minded observer, apprised of the facts, would have apprehended that a decision-maker might have been unable to bring an impartial mind to bear. Under the test, both the person apprehending the bias and the apprehension itself must be reasonable and the party alleging bias bears the onus of establishing the existence of this apprehension.

The first judgment noted that while the burden on an applicant for recusal may be formidable, it is not an escape mechanism for courts to dismiss meritorious applications. It reiterated that a decision-maker should not hesitate to recuse themselves where reasonable grounds for an apprehension of bias exist. Additionally, doubts must be resolved in favour of recusal. In sum, allegations of bias must be based on concrete facts and reasonable grounds; but, equally, cogent and substantiated calls for recusal must be treated seriously.;

Relying on this Court’s judgments in SARFU and Bernert, the first judgment further notes that where an applicant establishes a nexus between a decision-maker and the subject-matter before them, and where the precise nature of such connection is within the peculiar knowledge of the decision-maker, it is incumbent on the decision-maker to disclose relevant information which might reasonably be relevant to the recusal application.

The first judgment considered Commissioner Khampepe’s roles as Deputy National Dirctor of Public Prosecutions. In that capacity, she was empowered to determine prosecution policy, issue policy directives and intervene in prosecution processes when policy directives were not complied with. She occupied that role when HRIU was established for the purpose of dealing with the TRC cases. However, she simply denied having had any knowledge of the prosecution policy of the TRC cases during her tenure. Given the link between her previous role and the subject matter before the Commission, the first judgment found that it was incumbent on her to disclose the nature and scope of her role to dispel any apprehension of bias.

The first judgment found that the temporal boundary relied on in the recusal ruling was artificial. This was so because the alleged interferences in the investigation or prosecution of the TRC cases may have been presaged by earlier negotiations and arrangements. It noted that this was apparently accepted by the Commission itself. The Commission had called witnesses to give evidence on events predating 2003.

The first judgment considered that Commissioner Khampepe is in a position to make adverse findings against her former organisation and her former colleagues in respect of events that occurred at that organisation. It noted that had she not been the Chairperson, she may have been a competent and compellable witness herself.

The first judgment also noted that her role at the NPA coincided with her time on the TRC’s Amnesty Committee. This meant that she was on both the referring and receiving end of some TRC cases. While serving on the Amnesty Committee, Commissioner Khampepe gained personal knowledge about some of the very same cases that are before the Commission. For these reasons, the first judgment found that a reasonable, objective and informed observer would conclude that Commissioner Khampepe might not be able to bring an impartial mind to bear. It would thus have had her recused from the Commission.

The first judgment also refused the NPA’s application for condonation for its late filing of it explanatory affidavit.

Second judgment

The second judgment was penned by Nuku AJ, with Dambuza J, Kollapen J and Majiedt J concurring. It agreed with the first judgment’s reasoning and conclusion: (a) on the section 47(1) point in limine; (b) that the Court should have entertained the merits of the review application; and (c) that condonation of the NPA’s late filing of its explanatory affidavit should have been refused. However, it diverged from the first judgment on whether the review application should have succeeded. This was for two reasons: (a) the applicants did not properly plead procedural rationality as a ground of review; and (b) the facts pleaded by the applicants fell short of establishing a reasonable apprehension of bias against Commissioner Khampepe.

The second judgment was of the view that the first judgment incorrectly considered bias as reviewable under procedural rationality, holding that “the presence of a reasonable apprehension of bias is not rationally related to the achievement of the Commission’s purpose”. The second judgment took the view that the pleaded case by the applicants was insufficient and did not establish an attack on the recusal ruling by Commissioner Khampepe based on procedural irrationality.

President Zuma asked this Court for the following relief: upholding the appeal itself and granting the relief sought. Despite this ambiguity, the second judgment 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 instituting 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 asked this Court to set aside the recusal decision based on PAJA or, in the alternative, the principle of legality. Thus far, the second judgment noted that it is clear that the attack targets the recusal decision.

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 the manner consistent with the constitutional requirements of accountability, openness and fairness”. The second judgment agreed that the first judgment correctly dismissed this ground of review holding that it is bad in law. On rationality, the second judgment determines that President Zuma’s pleaded case was an attack on the recusal decision, which was alleged not to have been taken rationally. The second judgment was of the view that this attack was based on substantive rationality, which was quite distinct from procedural rationality.

The second judgment agreed with the first judgment in its setting out of the legal position that, for the applicants to succeed, they were required to establish a nexus between the decision-maker and the subject matter of the Commission. In grappling with this question, the second judgment distinguished itself from the first as it did not conclude that the facts presented by the applicants to persuade this Court of Commissioner Khampepe’s bias, establish a nexus between her role in the NPA and the mandate of the Commission in the eyes of a reasonable and objective observer.

The second judgment stated that 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.

The second judgment found that the first judgment approached the inquiry from the incorrect premise, focusing 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. The second judgment found it necessary to recall what this Court stated in Masuku regarding the reasonable apprehension of bias and prior associations. It stated that “the 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.”

On this basis, the second judgment found that it would be insufficient to ground a reasonable apprehension of bias on mere institutional associations. More was required. The applicants made generalised averments that Commissioner Khampepe occupied positions in the Amnesty Committee and the NPA. The second judgment was of the view that these generalised averments cannot constitute grounds for recusal on a reasonable apprehension of bias. This was as they do not indicate that Commissioner Khampepe would have been be unable to bring an independent and impartial mind to bear on the evidence before her.

Based on the above, the second judgment dismissed the review application.

Third judgment

The third judgment was penned by Rogers J. In a separate concurrence, it agreed with the order in the second judgment but did not support some of the reasoning furnished for it. He concludes that the commission’s proceedings were not administrative action and thus could not have been reviewed under PAJA. However, he held the view that commissions exercise public power, subject to legality constraints. He also held that bias should be recognised as an independent ground of review in the case of commissions of inquiry, rather than being dealt with as a facet of procedural irrationality.

Rogers J emphasised that a commissioner did not have statutory power, in place of courts, to determine her recusal. While it may have been desirable to request her withdrawal, should she have declined, the review court must have tested bias objectively and examined whether the commission’s proceedings were lawful, given the alleged bias of one of the commissioners. The challenge was directed at the lawfulness of the commissioner’s participation in the commission’s proceedings. While the applicants had incorrectly challenged the rationality or lawfulness of Commissioner Khampepe’s ruling, this was no

basis to decline to decide the case on the correct legal basis, absent prejudice. Accordingly, Rogers J disagreed with the second judgment’s conclusion that the case should have failed due to deficient pleadings but agreed that bias was not established on the pleadings.

The Full judgment  here