Jacob Gedleyihlekisa Zuma and Thabo Mvuyelwa Mbeki v The Chairperson of the Commission: Commissioner Sisi Khampepe and Others.....HIGH COURT

I am just a messenger who seeks to bring the law into a compressed digestable format to the masses. These brief legal analysis and summaries, are a means to reduce the 25 page written judgment document into a 5 minutes read. For us to be able to follow the rule of the law, we have to understand what the law is. The law is governing force in society that essentially dictates what we can and cannot do and how those thing can and cannot be done. So it is a very important thing that the very same subject that are governed by this force have to understand what it requires from them.

One of the tenets of the Rule of Law is that the Law must be certain. There can never be ambiquity or vagueness in the law. As if there is then it exists contrary to the Constitutional principles of the Rule of law.

The judgment we are looking at herein is a judgment which, in my opinion, has went against ensuring that it provides certainty to what the law requires. The section which is the subject matter of the case is section 47(1) of the Suprior Courts Act which postulates that

"no civil proceedings by way of summons or notice of motion may be instituted against 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

The section specifically provides that no one can sue "A JUDGE"- i repeat "A JUDGE" of a superior court. One reads this and its rational to come out with an understanding that you cannot sue a judge without consent from head of court. Therefore it would not be a surprise if someone who was "done wrong" by a "RETIRED JUDGE" decides to exercise their section 34 Constitutional right to access to court. The section simply makes mention of a judge of a superior, meaning the a sitting judge of the superior court cannot be sued without consent. Retirement spells no longer that things that one once was. And i didnt see in this judgment where the court explained how it applied the provision of section 47 to a commissioner.

I have full respect and admiration for the full bench in this judgment and the pen of ADJP MUDAU.

Herein below is the summary of the judgment and impact of the judgment on the lived realities of society

1. The Facts of the Matter Former Presidents Jacob Gedleyihlekisa Zuma and Thabo Mvuyelwa Mbeki approached the High Court on an urgent basis seeking relief against Commissioner Sisi Khampepe, a retired Constitutional Court Justice. Commissioner Khampepe had been appointed by President Cyril Ramaphosa to chair a Commission of Inquiry investigating allegations of political interference in the prosecution of Truth and Reconciliation Commission (TRC) cases.

The applicants sought to declare Khampepe's dismissal of Zuma’s recusal application unconstitutional and invalid, review and set aside that decision, and secure an order for her removal as Chairperson. Interestingly, President Ramaphosa (the tenth respondent) did not oppose the applicants' relief and filed an explanatory affidavit stating that had he known of the allegations against Khampepe, he would not have appointed her, and that he had previously asked her to step down, which she declined. Before the merits of the case could be heard, the Commission respondents raised a preliminary point (in limine) that the applicants had failed to obtain the required statutory consent to institute civil proceedings against a judge.

2. The Issues and Legal Question the Court Answered The central legal question before the court was jurisdictional: Did the applicants need the consent of the Chief Justice before instituting civil proceedings against a retired Constitutional Court judge who was serving as the Chairperson of a Commission of Inquiry?.

Consequently, the court had to determine if the failure to obtain this consent rendered the entire application a nullity, thus depriving the High Court of the competence to entertain the matter.

3. Legal Principles and Rules Applicable To resolve this issue, the court relied on the following core legal principles and rules:

• Section 47(1) of the Superior Courts Act 10 of 2013: This peremptory (mandatory) provision states that no civil proceedings by way of summons or notice of motion may be instituted against any judge of a Superior Court without the consent of the head of that court or the Chief Justice.

• Section 165 of the Constitution: Enshrines the independence of the judiciary, protecting courts from interference and ensuring they apply the law impartially without fear, favour, or prejudice.

• The Judges' Remuneration and Conditions of Employment Act 47 of 2001: This Act defines judicial "service" specifically to include service as a chairperson or a member of a commission of inquiry, meaning a judge performing this duty is fulfilling a judicial function.

• The Doctrine of Precedent (Stare Decisis): The court was bound by previous High Court decisions (such as Mantashe v Justice Raymond Zondo and Freedom Under Law v Judge Motata) which established that Section 47(1) applies equally to retired judges and those chairing commissions.

• The Bangalore Principles of Judicial Conduct: International standards highlighting that judicial independence is a prerequisite to the rule of law and a fundamental guarantee of a fair trial.

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4. The Court's Discussion, Evaluation, and Application of the Law The court evaluated the nature of Section 47(1) and established that it acts as a crucial "procedural filter" or "gatekeeping function" designed to protect judges from unwarranted, frivolous, and vexatious litigation that could compromise their independence or distract them from their duties.

Applying the law to the facts, the court determined that Justice Khampepe, despite being retired, was performing a judicial function as Chairperson of the Commission and remained bound by her judicial oath and ethical standards. The applicants’ founding affidavits contained serious personal accusations against her, alleging "actual bias," "gross misconduct," and "potential criminality". The court noted that these were exactly the types of direct attacks on a judicial officer's character that the legislature intended Section 47 to screen.

The court firmly rejected the applicants' reliance on a dissenting judgment (Memela v Chairperson of the State Capture Commission), labelling it an "outlier" that was clearly wrong for failing to recognise that chairing a statutory commission of inquiry is a judicial function protected under the law.

Furthermore, the court addressed President Ramaphosa’s supportive intervention. It ruled that while the President's stance was commendable in seeking to assist the court, consent is a statutory jurisdictional prerequisite that cannot be waived or cured by the President's mere agreement with the applicants. Because the applicants failed to get the Chief Justice's consent before launching the proceedings, the application was "void ab initio" (invalid from the very beginning) and there was no room for the court to condone the error.

5. The Court's Judgment The court handed down the following order:

1. The point in limine raised by the respondents was upheld. The applicants' non-compliance with Section 47 of the Superior Courts Act rendered the proceedings a nullity.

2. The main application, as well as the interlocutory application to compel documents, were dismissed entirely.

3. Costs: The first and second applicants (Zuma and Mbeki) were ordered to pay the costs of the first to sixth respondents jointly and severally, including the costs of two counsel.

4. The applicants' request for punitive/personal costs against Justice Khampepe was refused, with the court noting the irony of the applicants seeking to punish a judge for rightfully invoking a statutory protection. No costs order was made regarding the NPA or the President.

   
   

6. The Impact of this Judgment on the Lived Realities of Society

Positive Impacts:

• Safeguards Judicial Independence and Integrity: By strictly enforcing Section 47(1), the judgment fortifies the protective shield around judges (both active and retired) performing public services. It ensures that high-profile individuals, even former state presidents, cannot arbitrarily harass, intimidate, or derail the work of judicial officers leading crucial commissions of inquiry.

• Enhances the Efficacy of Commissions of Inquiry: Commissions dealing with deeply sensitive societal issues (like TRC prosecutions or State Capture) can proceed with the assurance that their chairpersons will not be dragged into open court without a prior merit-based screening by the Chief Justice.

• Affirms the Rule of Law and Equality: The judgment demonstrates that statutory and procedural laws are strictly applied regardless of the litigants' political power or the current President's sympathies. No one is exempt from following correct legal procedures.

Negative Impacts:

• Creates a Barrier to Accountability: While acting as a necessary filter, Section 47 also inherently creates a procedural hurdle for society. If a citizen or entity genuinely suffers under a biased or compromised commission chairperson, they face an extra layer of bureaucracy (obtaining the Chief Justice's consent) before they can seek redress in an open court.

• Potential Delays in Justice: The necessity to seek prior permission before reviewing administrative actions of a judge-led commission prolongs the legal process. If urgent intervention is truly needed, the gatekeeping mechanism could delay justice.

• Public Perception of "Shielding": To the layperson, the strict adherence to this procedural rule—especially when the current President agreed with the substantive concerns—might be misconstrued as the judiciary "protecting its own" on technicalities rather than dealing with the actual merits of alleged political interferenece