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In a landmark judgment, the Constitutional Court has found that litigants do not have to seek permission before suing retired judges chairing commissions of inquiry, bringing legal clarity to years of confusion caused by conflicting judgments on the matter.Former presidents Jacob Zuma and Thabo Mbeki brought an appeal to the Constitutional Court against a high court judgment concerning their bid to remove retired justice Sisi Khampepe as chair of a commission of inquiry.The high court in Johannesburg dismissed the two former presidents’ review application to overturn Khampepe’s decision not to recuse herself as chair of the commission investigating the failure of the National Prosecuting Authority (NPA) to prosecute Truth and Reconciliation Commission (TRC) cases.The high court dismissed their application — not on the merits but on procedural grounds — finding that the former presidents’ failure to seek permission from chief justice Mandisa Maya before litigation against Khampepe was “fatal to the review application”. Central to the appeal was whether section 47 of the Superior Courts Act, which requires litigants against any judge of a superior court to first apply to the head of a court before initiating a case, was applicable to Khampepe as a retired judge. The apex court, in a judgment delivered by justice Leona Theron on Monday, unanimously found Khampepe, as a retired judge chairing a commission, did not enjoy the same legal shield as judges in a court of law when faced with civil litigation.“In view of the facts that commissioner Khampepe is not presently a justice of this court or a judge of any other superior court, and that the commission is not a court of law, she falls beyond the ambit of section 47(1),” said Theron.“It follows that commissioner Khampepe is not a ‘judge of a superior court’ as envisaged in section 47(1),” she said. The judgment brings clarity to a procedural step litigants faced for years when challenging reports penned by retired judges. It marks important legal clarity as the country continues to employ retired judges as chairpersons of commissions.Having found that section 47(1) is inapplicable to the review application, the top court found the high court was mistaken in dismissing the former presidents’ case due to not seeking permission before legal challenge.Theron found that while section 47 shields judges from vexatious, frivolous or otherwise unmeritorious litigation, when its provision extends to retired judges under the definition of a “judge of a superior court”, it risks creating a perception that judges are above the law. “While section 47(1) only plays a gatekeeping role and does not offer an absolute bar against civil lawsuits, to extend its reach to all judges, active and retired, would mean that once a person is appointed as a ‘judge of a superior court’, they would enjoy the protection of section 47(1) for the remainder of their life.” “Moreover, this interpretive extension would impose a procedural hurdle on litigants who wish to institute proceedings against former judges merely because they used to form part of the judiciary. This may foster the impression that the law treats judges differently from others.” While Zuma and Mbeki won on the section 47 applicability question, which Mbeki argued affected rights of access to court, they lost on their main plea to overturn Khampepe’s decision not to recuse herself.The Constitutional Court dismissed the plea that Khampepe’s decision not to recuse herself be set aside. This means she remains chair of the commission. The former presidents questioned Khampepe’s impartiality because she was a member of the 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. After failing to overturn Khampepe’s decision the former presidents now face summonses to appear before Khampepe at the TRC commission.
