JOHANNESBURG, Monday 31 August 2026 — The Constitutional Court of South Africa has rejected an attempt by former presidents Jacob Zuma and Thabo Mbeki to remove retired Justice Sisi Khampepe as chair of the inquiry investigating whether political interference obstructed investigations and prosecutions of apartheid-era crimes referred by the Truth and Reconciliation Commission.
The ruling means Khampepe remains chair of the judicial commission and clears a major legal obstacle to the inquiry calling the two former presidents to give evidence about what happened to outstanding TRC cases during their administrations.
Zuma and Mbeki had argued that Khampepe’s previous membership of the TRC Amnesty Committee and her later position as deputy national director of public prosecutions created a reasonable apprehension of bias.
Their challenge followed Khampepe’s January refusal to recuse herself.
A full bench of the Gauteng High Court dismissed their subsequent review application in March because they had not obtained the permission required under section 47 of the Superior Courts Act before instituting proceedings against a judge. The High Court therefore did not determine the underlying allegations of bias.
Monday’s Constitutional Court decision substantially changes that position.
The apex court granted Zuma and Mbeki leave to appeal and partially upheld their challenge to the High Court’s reasoning, setting aside the finding that section 47 prevented the application from proceeding.
It nevertheless dismissed their substantive attempt to overturn Khampepe’s decision not to recuse herself.
The judgments were not unanimous in their reasoning.
According to reporting on the judgment, one judgment concluded that an objective and informed observer could reasonably apprehend that Khampepe might not approach the inquiry impartially because of her previous institutional roles.
A separate judgment, supported by four other judges, found that Zuma and Mbeki had not established sufficient grounds for such an apprehension.
It held that Khampepe’s historical association with the TRC and National Prosecuting Authority was not, without more specific evidence, sufficient to establish reasonable apprehension of bias.
The result is that Khampepe remains in charge of the inquiry.
The commission was established to investigate allegations that efforts were made to prevent or obstruct investigations and prosecutions arising from cases referred by the TRC.
Its mandate focuses particularly on what happened to those cases from 2003 onwards.
That period overlaps with the presidencies of both Mbeki and Zuma, making their evidence potentially important to establishing whether political decisions influenced prosecutorial authorities.
The inquiry has said the ruling means it can proceed with attempts to obtain their evidence.
Commission spokesperson Lionel Adendorf welcomed the judgment on Monday, saying the inquiry could now call the former presidents to assist it in understanding what happened to the outstanding cases.
The dispute over Khampepe’s position had threatened to delay that process.
Zuma and Mbeki argued during the litigation that her previous roles placed her too close to some of the institutions and decisions the commission is now required to investigate.
Khampepe served on the TRC Amnesty Committee before later serving as deputy national director of public prosecutions between 1998 and 1999.
President Cyril Ramaphosa established the commission following longstanding complaints from families of apartheid-era victims about the failure to prosecute cases referred by the TRC.
During the Constitutional Court proceedings, Ramaphosa acknowledged that he would not have appointed Khampepe had he been aware of the full extent of her previous involvement in the relevant institutions.
That acknowledgement formed part of the arguments advanced by the former presidents but ultimately did not persuade the majority that Khampepe was required to step aside.
The commission’s investigation has broader implications for the National Prosecuting Authority.
One of its central questions is whether decisions not to pursue TRC-related prosecutions resulted from legitimate prosecutorial considerations or improper political pressure.
Families of victims and civil-society organisations have for years sought answers about why numerous cases identified for possible prosecution after the TRC process were not pursued.
The inquiry is intended to establish whether political interference contributed to those failures and, if so, who was responsible.
Monday’s Constitutional Court ruling does not make findings on those underlying allegations.
Nor does it establish that either Mbeki or Zuma interfered with prosecutions.
Instead, it determines that the inquiry may continue under Khampepe’s leadership and that the objections raised by the former presidents do not provide sufficient grounds for her removal.
That distinction will become increasingly important as the commission turns from procedural disputes towards evidence about decisions made inside government and prosecuting institutions.
Mbeki and Zuma can now be called as witnesses.
Their evidence could provide some of the inquiry’s most consequential testimony because together they occupied the presidency for much of the period in which questions have been raised about the failure to prosecute outstanding TRC cases.
The Constitutional Court’s decision therefore moves the inquiry into a potentially more substantive phase.
After months in which the identity of the commission’s chair became the subject of litigation, attention can return to the question the inquiry was created to answer: why potentially prosecutable apartheid-era crimes remained unresolved decades after the TRC completed its work.
