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“The Commission operates at the intersection of profoundly significant and competing interests: the Calata Group and other victims seeking long-delayed truth and accountability; former Presidents whose personal and reputational interests are engaged; and the foundational constitutional values of national unity, reconciliation, and the rule of law that underpinned the [Truth and Reconciliation Commission]’s restorative justice framework.  Maintaining public confidence in such a process requires scrupulous institutional impartiality.  Any reasonable perception that the Chairperson’s continued involvement may compromise that impartiality risks undermining the Commission’s credibility and rendering its work vulnerable to lasting doubt.”

Introduction

[1]            This matter consists of two urgent applications.  The first is 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 is an application for direct access.  These applications involve the same parties, concern similar factual matrices and overlap in the relief sought.  The central questions to be determined address the interpretation of section 47(1) of the Superior Courts Act (Act) and the review of a recusal decision.  The applicants are two former Presidents, Mr Jacob Gedleyihlekisa Zuma and Mr Thabo Mvuyelwa Mbeki.

[2]            The first respondent is Commissioner Sisi Khampepe, who was a Justice of this Court from 2009 until her retirement in 2021.  In May 2025, she was appointed by the ninth respondent, President Matamela Cyril Ramaphosa, 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 Commission has two other commissioners, Commissioner Frans Kgomo, who retired as the Judge President of the High Court of South Africa, Northern Cape Division in September 2017, and Commissioner Andrea Gabriel SC, an advocate.  They are cited as the fourth and fifth respondents, respectively.  The second respondent is the Secretary of the Commission.  The third respondent is Advocate Ishmael Semenya SC, the Commission’s Chief Evidence Leader.  The first, third, fourth and fifth respondents are all cited nomine officio (in their official capacities).  The first to fifth respondents are referred to as the Commission Respondents.

[3]            The sixth respondent is the Calata Group, a collective term referring to twenty five families who have been seeking the prosecution of apartheid era crimes that involved the torture and killing of their family members.  The seventh and eighth respondents are the National Prosecuting Authority (NPA) and the Minister of Justice and Constitutional Development (Minister), respectively.  The two applications are opposed by the Commission Respondents and the Calata Group.