The Jacob Zuma and Thabo Mbeki Constitutional Court battle has taken a significant turn after the country’s highest court ruled that retired Justice Sisi Khampepe can remain chairperson of the inquiry investigating the alleged suppression of prosecutions arising from Truth and Reconciliation Commission (TRC) cases.
The judgement, handed down on Monday, 31 August 2026, is already having consequences beyond the original dispute. While Zuma and Mbeki succeeded on an important legal question concerning whether permission was required before they could challenge Khampepe in court, they failed in their main objective: having her removed from the inquiry.
The developments did not end with the judgement.
On Tuesday, 1 September, the Jacob Zuma Foundation said it plans to open a criminal case against Khampepe and approach the Judicial Service Commission over allegations concerning her conduct. The claims have not been established as criminal wrongdoing by a court.
The ruling therefore leaves South Africa with an unusual situation: a major legal victory on the interpretation of the law surrounding retired judges, but a defeat for Zuma and Mbeki in their attempt to remove the inquiry’s chairperson.
Table of Contents
1. What the Constitutional Court decided
The Constitutional Court case involved former presidents Jacob Zuma and Thabo Mbeki and their challenge to Justice Sisi Khampepe’s decision not to recuse herself from the TRC Cases Inquiry.
The court granted them leave to appeal directly and considered the legal issues surrounding their challenge.
At the heart of the case was whether Khampepe, who retired from the Constitutional Court in 2021, should be treated as a judge of a superior court for the purposes of section 47(1) of the Superior Courts Act.
The provision requires consent from the head of a court before civil proceedings can be instituted against a judge of a superior court.
The Gauteng High Court had previously dismissed Zuma and Mbeki’s application because they had not obtained the required consent from the Chief Justice. The High Court therefore did not reach the merits of their arguments about Khampepe’s alleged bias.
The Constitutional Court disagreed with that interpretation.
It unanimously found that section 47(1) did not apply to Khampepe in her current role.
But that did not automatically mean Zuma and Mbeki won the case.
Their main objective was still to have Khampepe removed.
2. Why Zuma and Mbeki challenged Khampepe
The dispute goes back to Khampepe’s previous roles in South Africa’s post-apartheid justice system.
Khampepe served as a commissioner of the Truth and Reconciliation Commission between 1995 and 2001 and was also a member of its Amnesty Committee.
She later served as Deputy National Director of Public Prosecutions between 1998 and 1999. During that period, the TRC referred cases to the National Prosecuting Authority for investigation and possible prosecution.
Zuma and Mbeki argued that these historical roles created a reasonable apprehension that Khampepe could not approach the current inquiry with the necessary impartiality.
Their concerns were particularly significant because the commission is examining allegations surrounding efforts to stop or delay investigations and prosecutions of TRC-related cases.
The former presidents also raised allegations concerning the way certain matters had been handled within the inquiry.
Khampepe rejected the recusal application in January 2026.
She argued that the commission’s mandate concerns alleged efforts to suppress TRC cases from 2003 onwards, creating a temporal distinction between the current investigation and her previous roles.
That disagreement eventually reached the Constitutional Court.
3. The important section 47 victory
One of the most important aspects of the ruling is the distinction between winning a legal point and winning the overall case.
Zuma and Mbeki successfully challenged the application of section 47(1).
The Constitutional Court held that Khampepe is no longer a judge of a superior court because she retired from the Constitutional Court. It also found that serving as chairperson of a commission of inquiry does not transform that commission into a court of law.
As a result, the special protection contained in section 47(1) did not apply to her in this situation.
The court explained that section 47 exists for important reasons, including protecting judges against frivolous or vexatious litigation and protecting judicial independence.
However, extending that protection indefinitely to every retired judge could create a situation where someone who once served as a judge remained protected from litigation simply because of their former position.
The ruling therefore provides important clarity for future legal challenges involving retired judges who chair commissions of inquiry.
This could ultimately prove to be one of the judgement’s most lasting consequences.
4. Why Khampepe remains in charge
Despite winning the section 47 argument, Zuma and Mbeki did not obtain the outcome they were seeking.
The Constitutional Court did not set aside Khampepe’s decision to remain as chairperson.
There were different judgements within the court on the reasoning surrounding the bias question.
One judgement found that Khampepe’s previous institutional roles created a reasonable apprehension of bias and would have justified her recusal.
Another judgement disagreed, finding that the evidence and arguments presented did not establish the necessary connection between her former positions and the present inquiry strongly enough to justify removal.
The court ultimately dismissed the review challenge to Khampepe’s decision.
The practical result is clear: Khampepe remains chairperson of the inquiry.
That means the legal battle did not achieve Zuma and Mbeki’s central objective.
5. What happens to Zuma and Mbeki next?
The immediate consequence is that the two former presidents must face the inquiry rather than stopping it through their recusal challenge.
Reports indicate that they now face summonses to appear before the commission as witnesses.
That could make the next phase of the inquiry particularly significant.
The commission is investigating whether there were efforts or attempts to stop the investigation or prosecution of cases connected to the TRC.
The inquiry includes questions around the historical handling of apartheid-era crimes and the failure to prosecute some of the cases referred through the TRC process.
For families who have spent decades seeking accountability, the continuation of the inquiry is particularly important.
The Constitutional Court’s ruling means that the legal challenge over Khampepe’s position will no longer prevent the commission from proceeding on that basis.
6. The latest response from the Zuma Foundation
The legal dispute has not ended with the Constitutional Court judgement.
On Tuesday, the Jacob Zuma Foundation said it intends to pursue further action against Khampepe.
Foundation spokesperson Mzwanele Manyi said the foundation plans to open a criminal case against the retired justice and submit a complaint to the Judicial Service Commission.
The foundation alleges that there was unlawful conduct involving Khampepe and the evidence leader. These are allegations made by the foundation and should not be presented as established facts or as a finding by the Constitutional Court.
The foundation has described the Constitutional Court outcome as a narrow loss and indicated that it intends to continue pursuing its concerns through other legal and institutional channels.
Whether those planned actions result in further proceedings remains to be seen.
For now, the Constitutional Court ruling itself stands: Khampepe remains chairperson of the commission.
7. Why this ruling matters for South Africa
This case is bigger than the dispute between two former presidents and a retired judge.
It raises important questions about judicial accountability, access to courts, commissions of inquiry and South Africa’s unfinished apartheid-era justice process.
The Constitutional Court has now clarified that a retired judge serving as chairperson of a commission does not automatically receive the same section 47 protection as a sitting judge of a superior court.
That could make it easier for litigants to challenge the conduct of retired judges serving on commissions without first obtaining permission from the head of a court.
At the same time, the judgement demonstrates that successfully overcoming a procedural barrier does not guarantee success on the substantive issue.
For Zuma and Mbeki, the distinction is particularly important.
They succeeded in persuading the Constitutional Court that they should not have been blocked from bringing their legal challenge because they had not obtained permission under section 47.
But after considering the case, the court did not remove Khampepe.
The commission therefore moves forward, with its chairperson still in place and the former presidents facing the prospect of participating in the inquiry.
For South Africa, the next chapter may be even more significant than the court battle itself.
The central question now shifts away from whether Khampepe should preside over the inquiry and towards what the inquiry will ultimately uncover about the handling of apartheid-era cases and the long-running struggle for accountability.
And with the Zuma Foundation now promising further action, the controversy surrounding the commission is unlikely to disappear anytime soon.
8. Frequently Asked Questions
What did the Constitutional Court rule in the Zuma and Mbeki case?
The Constitutional Court dismissed Jacob Zuma and Thabo Mbeki’s bid to have retired Justice Sisi Khampepe removed as chairperson of the inquiry into alleged attempts to stop the investigation and prosecution of apartheid-era crimes. Khampepe therefore remains in her position.
Did Zuma and Mbeki win anything in the Constitutional Court?
Yes. The former presidents successfully challenged the application of section 47 of the Superior Courts Act in this case. The court found that the provision requiring permission before suing a sitting judge did not apply to Khampepe because she is retired and was acting as a commission chairperson rather than as a sitting judge.
Why did Zuma and Mbeki want Justice Sisi Khampepe removed?
They argued that Khampepe’s previous involvement with the Truth and Reconciliation Commission and her former role in the National Prosecuting Authority created a reasonable apprehension of bias. They wanted her decision not to recuse herself from the inquiry overturned.
What happens to the inquiry now?
The inquiry can continue with Khampepe as its chairperson. The Foundation for Human Rights has welcomed the ruling and said the commission’s work can proceed, while preparations are reportedly under way for Zuma and Mbeki to give evidence
What is Jacob Zuma planning after the ruling?
The Jacob Zuma Foundation says it plans to pursue further action against Khampepe, including a criminal complaint to the South African Police Service and a complaint to the Judicial Service Commission concerning alleged conduct involving the commission’s evidence leader. These are allegations by the foundation and have not been established as criminal wrongdoing by a court.
Leave a Reply