The recusal application brought before the Khampepe commission by the National Prosecuting Authority (NPA) and the department of justice (DOJ) against Adv Ishmael Semenya has been dismissed. Semenya is the chief evidence leader in the judicial commission of inquiry that is investigating allegations of interventions to stop the investigation or prosecution of Truth and Reconciliation Commission (TRC) cases. The applicants had argued that Semenya was conflicted due to his role in advising on the NPA’s 2005 TRC prosecution policy, a policy later declared unconstitutional for creating “backdoor amnesties”.
In her ruling, chairperson Justice Sisi Khampepe found that the applicants “failed to discharge the requisite burden of proof by applying the incorrect legal test and by failing to establish the necessary factual evidence”. PULL QUOTE =[…] the role of evidence leaders, including the questioning of witnesses, is always subject to the direction of the chairperson of the commission[…] The NPA and DOJ had sought Semenya’s recusal on grounds that his involvement in the case of Nkadimeng and Others v NDPP meant he could not approach the commission’s work impartially. However, Khampepe noted that evidence leaders are not decision-makers and therefore cannot be assessed using the same standard as judges.
She held that the Sarfu test, the legal standard advanced by the applicants, was inapplicable, as evidence leaders assist the commission but don’t make decisions. “They therefore cannot be equated to judges or those who are vested with decision-making powers, as was the position in the Sarfu case and the line of cases that subsequently followed and applied that test,” she said. Instead, she said the commission accepted the approach in Porritt and Killian, which requires showing that the evidence leader’s past role would result in “substantive unfairness”.
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Applying that test, Khampepe rejected the assertion that Semenya’s prior involvement created an inherent conflict. “The argument, therefore, that unfairness will flow from Semenya SC’s prior role in Nkadimeng is misplaced. It is as well to point out again that the role of evidence leaders, including the questioning of witnesses, is always subject to the direction of the chairperson of the commission, which is a key safeguard to ensure that the commission’s proceedings are conducted in a fair manner,” Khampepe said.
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