Khampepe dismisses recusal application against Advocate Semenya in TRC inquiry

Retired Constitutional Court Judge Sisi Khampepe, and Chairperson of the TRC Cases Commission of Inquiry, has ruled in favour of Advocate Ishmael Semenya SC, in the recusal application to have him removed from as Chief Evidence leader at the Khampepe Commission of Inquiry.

Last month, the Khampepe Commission of Inquiry, established to probe alleged political interference in TRC-related investigations and prosecutions, began its public hearings. However, no sooner had it started with the National Prosecuting Authority (NPA) bringing its recusal application against Semenya.

This application brought by both the NPA and and the Department of Justice and Constitutional Development suggested that Semenya, who had advised the NPA on policies central to the inquiry, over a decade ago, would be conflicted in his duty as evidence leader in the current commission.

The applicants argued that his continued participation in leading certain witnesses could compromise the fairness of the proceedings after Semenya’s participation in advising the NPA culminated in a judgment on 12 December 2008.

It is this participation that the opposing parties have said creates a potential conflict of interest on the part of Semenya.

In her judgment, Khampepe said the commission also considered affidavit submissions filed by Webber Wentzel and the Calata family, through their lawyers.

However, on Thursday, December 4, Justice Khampepe ruled against this application, saying the applicants for Semenya’s recusal were unable to failed to prove that Semenya’s prior work has the potential to prejudice the work of the current commission.

“For the reasons described, the commission finds that the applicants failed to discharge the requisite burden of proof by applying an incorrect legal test and by failing to establish the necessary factual evidence.. The recusal applicants must, therefore, be dismissed, for the reasons set out in the ruling,” Khampepe found.

The commission was established by President Cyril Ramaphosa in May this year, after he signed a proclamation to determine whether attempts were made to prevent the investigation and prosecution of apartheid-era crimes.

Furthermore, Khampepe, who is being assisted by retired Northern Cape Judge President Frans Diale Kgomo and Adv Andrea Gabriel SC said Semenya’s limited role in the work of the Commission does not serve the Commission well.

“The applications for recusal of Semenya SC as Chief Evidence leader, brought by the NPA and Department of Justice, are dismissed.

“The preliminary directions, previously issued by the chairperson on 19 September 2025, concerning restrictions of Semenya SC’s participation in deliberations, questioning or cross-examination relating to the amendments to the prosecution policy are hereby uplifted,” she ruled.

Meanwhile, former president Jacob Zuma has entered the TRC Cases Inquiry fray.

On Wednesday, Zuma, through his lawyers, KMNS Attorneys, accused Justice Khampepe of abdicating her duties and independence after she allegedly allowed certain transgressions.

“Inter alia, she has aided and abetted Adv Semenya in dealing with the alleged conflict of interest on his part and turned a blind eye to his undue participation in engagements with witnesses in relation to the subject matter of his alleged conflict of interest and in breach of the directive of the chairperson herself dated 19 September 2025.

"In so doing, she has made herself directly and/or indirectly guilty of unconstitutional conduct or judicial misconduct, and the recent ruling is therefore tainted,” the lawyers said.