PRESS RELEASE
To: All Media
ATT: News Editors, Human Rights Reporters
For Immediate Release
Yesterday, the Constitutional Court handed down its judgment in the matter of Zuma & Another v 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 & Others (CCT 90/26).
The case concerned applications by former Presidents Zuma and Mbeki’s to appeal the judgment of the High Court which refused to review the decision of Retired Constitutional Court Justice Sisi Khampepe not to recuse herself as the Chairperson of the TRC Cases Inquiry.
The 25 families and survivors of apartheid-era gross human rights violations, known as the Calata Group, together with the Foundation for Human Rights (FHR), opposed the applications before the Constitutional Court.
A majority of the Constitutional Court (Nuku AJ, Dambuza, Kollapen and Majiedt JJ) held that the former Presidents failed to establish grounds warranting Justice Khampepe’s recusal. The majority found that Justice Khampepe’s prior roles at the TRC amnesty committee and the National Prosecuting Authority (NPA) as Deputy National Director of Public Prosecutions between 1998 and 1999 amounted to ‘mere institutional associations’ which did not make out a reasonable apprehension of bias. In a separate concurrence, Justice Rogers agreed with the majority on the issue of bias but offered different legal reasoning.
The minority (Theron, Mlambo, Mathopo and Mhlantla JJ) concluded that the prior roles created a reasonable apprehension of bias rendering Justice Khampepe unfit to chair the TRC Cases Inquiry.
Of further significance is the unanimous finding of the Constitutional Court that section 47(1) of the Superior Courts Act, a gatekeeping provision which regulates the institution of civil proceedings against judges of the superior courts did not apply to Justice Khampepe because she is a retired Constitutional Court Justice and does not currently serve as a judge of a superior court. The Court found that her role as chairperson of a judicial commission of inquiry did not place her within the ambit of section 47(1).
Consequently, the Constitutional Court dismissed the appeals. Each party, except the NPA, was ordered to bear its own costs in the litigation. The NPA was ordered to pay the costs of the Calata Group in opposing the NPA’s unsuccessful application to condone the late filing of its explanatory affidavit.
The families and the FHR welcome the court’s judgment, which allows the TRC Cases Inquiry to proceed with its important work with Justice Khampepe as chairperson. They hope that the TRC Cases Inquiry can proceed to hear the remainder of its evidence without any further delays.
The judgment also paves the way for former Presidents Zuma and Mbeki to give evidence before the Commission. Summonses previously issued against them were stayed pending the litigation, however, the stay expires on 1 September 2026.
Background
The TRC Cases Inquiry was established following Constitutional Damages litigation brought by the families and the FHR in January 2025. They claim the families’ constitutional rights were violated, due to the failure to investigate and prosecute TRC cases. The claimants argue that the investigation and prosecution of TRC cases was unlawfully suppressed by political interference into the work of the NPA and the Hawks. In addition to other relief, the 25 families and survivors and the FHR sought the payment of symbolic damages to acknowledge the violation of their rights and an order compelling the President to establish a commission of inquiry. A partial settlement was reached and on 29 May 2025 President Ramaphosa established the Commission of Inquiry into the stopped TRC Cases.
For many victims and survivors, the TRC Cases Inquiry represents the first meaningful opportunity to understand why apartheid-era crimes identified by the TRC were not properly investigated and prosecuted in democratic South Africa. This is not simply a legal dispute. It is a process that concerns the deaths, disappearances, torture and suffering of loved ones, and the decades-long failure of the democratic state to investigate and prosecute those responsible. Every delay carries a human cost.
FHR and the families were represented in the litigation by Geoff Budlender SC, Howard Varney, Janice Bleazard, Chiara Louis, and Dasantha Pillay. The survivors and families, the Foundation for Human Rights and the Webber Wentzel legal team remain committed to pursuing truth, accountability and justice.
Media Contacts:
Foundation for Human Rights: Jessie Waldman, jwaldman@fhr.org.za/078 644 8258
Webber Wentzel: Asmita Thakor, asmita.thakor@webberwentzel.com / 011 530 5000
