Adv Ishmael Semenya has dismissed the request by two former presidents and several former cabinet ministers for the recusal of Justice Sisi Khampepe from the Truth and Reconciliation Commission (TRC), saying their allegation of possible impartiality by the judge are without merit and are intended to deceive. This comes after presidents Jacob Zuma and Thabo Mbeki filed applications seeking the recusal of Khampepe, arguing that she has a disqualifying conflict of interest arising from her prior roles in the TRC Amnesty Committee and as deputy national director of public prosecutions, which they contend intersect directly with the commission’s mandate. They further allege that she engaged in serious misconduct by providing undisclosed legal advice to Semenya to defeat a recusal application over which she was presiding, thereby undermining impartiality and procedural fairness.
The applications is also supported by Brigitte Mabandla, Charles Nqakula, Thoko Didiza and Ronnie Kasrils, who also claimed allegations of conflicts of interest, misconduct and apprehension of bias. In his answering affidavit to the application, Semenya dismissed the claims, saying the applicants provided no evidence to suggest the chairperson lacks impartiality. “What evidence do the applicants offer for the contention that a reasonable person viewing the correct facts reasonably and objectively, would reasonably apprehend that the chairperson would not bring an impartial mind to bear to the adjudication of the matters falling within the commission’s mandate?” he asked.
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 TRC cases He said Khampepe’s involvement in the TRC between 1995 and 2001 has no overlap with the commission’s mandate, which concerns alleged interference in prosecutions from 2003 onwards. “The applicants offer no evidence whatsoever why the chairperson’s previous positions would impair her impartiality on issues that are relevant to the terms of reference. Nor indeed can they because there is no such evidence,” he said.
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Last year, the National Prosecuting Authority and the department of justice wanted Semenya to be recused from the hearing, also citing conflict of interest. According to Semenya, Zuma, Mbeki as well as the the former cabinet ministers are also now attempting to revisit his recusal indirectly through the present recusal application. “The ruling that the commission made on whether I was conflicted, given my previous involvement in the Nkadimeng matter, is challenged by the applicants on spurious grounds.
They knew that there was an application to have me removed as an evidence leader. They elected not to participate in the application for my recusal. The applicants now seek to resuscitate that issue via the back door,” he said.
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