WATCH | Ramaphosa argues he does not have power to remove justice Sisi Khampepe

President Cyril Ramaphosa cannot remove retired justice Sisi Khampepe as the chair of the commission probing the failure of investigations and to prosecute apartheid-era crimes, advocate Timothy Bruinders argued on Tuesday.

Bruinders, representing the president, made submissions before a full bench in the high court in Johannesburg in the application initiated by former President Jacob Zuma seeking to have Khampepe removed as chair of the commission.

The court bid questioning Khampepe’s impartiality, in which Zuma is supported by former president Thabo Mbeki, is pinned on the fact that Khampepe was a member of the Truth and Reconciliation Commission (TRC) and its amnesty committee, appointed by the late president Nelson Mandela in 1995, and served as the deputy national director of public prosecutions from September 1998 to December 1999.

The commission is tasked with probing whether there was political infiltration in the NPA that caused delays in the prosecution of TRC cases.

Ramaphosa filed an explanatory affidavit in which he said he was not aware of the allegations at the time he appointed justice Khampepe chair of the commission, adding that had he been aware he would have not appointed her.

Bruinders argued on Tuesday that the president cannot dismiss Khampepe as the chair because he does not have legal power to do so.

Ramaphosa cites section 84 of the constitution, arguing that having exercised the power to appoint her as chair of the commission, he is prohibited from playing any further role, or effecting her removal.

“We do say it might be that you do find that he might not be functus [officio]; however, even if he did have the power to remove her, the president cannot undermine judicial authority by removing the chair. That would not promote public confidence in the exercise of the president’s section 84 powers,” Bruinders contended.

“It will be as if the president is acting as he pleases.”

In his court papers, Ramaphosa said that when he became aware of the allegations against Khampepe, he requested justice minister Mmamoloko Kubayi to approach Khampepe about the possibility of stepping down.

The bench quizzed Bruinders on whether it was proper for the president to make such a request.

“He asked her to consider. That is proper; it is about public confidence. If she removed herself, we would avoid all of this. It is important to avoid a public spectacle that is damaging in the public eye. It was not an offence. It was proper,” Bruinders said.

Bruinders supported the arguments made by Mbeki’s legal representative, advocate Ngwako Maenetje, that Khampepe had a legal obligation to disclose her involvement in the National Prosecuting Authority and Truth and Reconciliation Commission (TRC) amnesty committee.

The hearing continues, with advocate Tembeka Ngcukaitobi set to argue on behalf of the commission.

Business Day