Sisi Khampepe

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In March 2005, President Mbeki appointed Khampepe to lead a one-person commission of inquiry into the future of the Directorate of Special Operations, the specialised anti-corruption unit better known as the Scorpions. She was tasked with investigating the mandate of the Scorpions, its relationship with other law enforcement agencies, and its location under the National Prosecuting Authority. [13] [14] The appointment was viewed as a "hot political potato", given that the Scorpions had conducted several high-profile investigations into sitting politicians. [8] The Khampepe Commission conducted its work between April 2005 and February 2006, [1] but Khampepe's report was not released to the public until May 2008. [15]

Her report was broadly supportive of the Scorpions, concluding that it fulfilled a valuable mandate and recommending that it should continue to exist as a unit of the National Prosecuting Authority, though under the political oversight of the Minister of Safety and Security rather than the Minister of Justice. [15] [16] However, by the time the report was released, Mbeki's political party, the African National Congress (ANC), had already initiated legislation to disband the Scorpions entirely. [17] Nonetheless, observers said that Khampepe's "principled line" and "politically incorrect defence of the unit's prosecutorial independence" cemented her public profile and her reputation as a judge. [8] [18]

Labour Appeal Court

On 19 November 2007, President Mbeki appointed Khampepe as a judge of the specialised Labour Appeal Court of South Africa. She took office later the same month, [1] alongside Judges Dennis Davis and Monica Leeuw. [19] She was nominated to the court by its acting Judge President, Ronnie Bosielo, and was its only woman judge at the time of her appointment. [20] During her two years there, she served a stint as acting Deputy Judge President. [2]

Constitutional Court: 2009–2021

Nomination

In August 2009, Khampepe was among the 24 candidates whom the Judicial Service Commission shortlisted for possible appointment to four vacancies on the Constitutional Court of South Africa, arising from the respective resignations of Justices Pius Langa, Yvonne Mokgoro, Kate O’Regan, and Albie Sachs. [18] Khampepe was regarded as one of the frontrunners, both because she was respected as a judge and because of her "perceived closeness" to Justice Sandile Ngcobo, who was earmarked for appointment as Chief Justice of South Africa. [21] She was interviewed by the Judicial Service Commission on 21 September in Kliptown, Soweto, and the panel asked her primarily about her experience as the head of the Khampepe Commission and her treatment of political stakeholders in that process. [22] The Mail & Guardian viewed these questions as indicative of the Judicial Service Commission's "soft handling" of Khampepe. [23]

The following day, upon the conclusion of its interviews, the Judicial Service Commission endorsed Khampepe and six other candidates as suitable for appointment. [24] Anonymous sources told News24 that Khampepe had the unanimous support of the commission's members, including Justice Minister Jeff Radebe and outgoing Chief Justice Pius Langa, less because of her jurisprudence than because of "her wide experience and her ability to apply her mind". [25] On 11 October 2009, President Jacob Zuma announced that he had appointed Khampepe and three others – Johan Froneman, Chris Jafta, and Mogoeng Mogoeng – to the Constitutional Court bench, with effect from the following day. [26]

A 2017 hearing of the Constitutional Court of South Africa Fullsizeoutput 58.jpg
A 2017 hearing of the Constitutional Court of South Africa

Judicial leadership

Justice Edwin Cameron later characterised Khampepe as "perhaps the second most powerful person in this Court after the Chief Justice", [3] and in 2011, as Ngcobo's retirement approached, she was regarded as one of the frontrunners in the race to succeed him as Chief Justice, [27] especially given rumours that Ngcobo himself supported her elevation. [28] Although Deputy Chief Justice Dikgang Moseneke was considered to be the overall favourite, commentators believed that Khampepe would be the foremost candidate if President Zuma elected to appoint a woman; [28] according to Eusebius McKaiser, she was "more politically acceptable to the ANC than other options". [29] Over the objections of civil society groups, both Moseneke and Khampepe were ultimately overlooked in favour of Justice Mogoeng Mogoeng. [30] However, there were reports that Zuma had offered the position to Khampepe ahead of Moseneke, but that she had declined because she felt that Moseneke was better-qualified. [31]

In later years, Zuma's successor, President Cyril Ramaphosa, twice appointed Khampepe to fill in for Mogoeng as Acting Chief Justice, once in 2019 and once in 2021; on both occasions, she assumed Mogoeng's office through appointment as Acting Deputy Chief Justice in place of Raymond Zondo, who at the time was presiding over his commission of inquiry into state capture. [32] [33] She additionally served as the chairperson of the court's Artworks Committee from 2015 onwards, having joined the committee in 2012 as a birthday present to Justice Johann van der Westhuizen. [34]

Jurisprudence

At the end of Khampepe's tenure in the Constitutional Court, Chief Justice Raymond Zondo singled out for commendation her jurisprudence "on the rights of women and children, and other vulnerable members of society". [35] This included notably her judgment in Teddy Bear Clinic v Minister of Justice , handed down unanimously in 2013, which decriminalised consensual sexual acts between minor children and which was widely heralded as progressive. [36] [37] Likewise, in the labour law matter of Mankayi v AngloGold Ashanti , Khampepe wrote on behalf of the majority in finding that mineworkers with occupational lung disease were entitled to institute civil claims against their employers; [38] this holding enabled an unprecedented flurry of class action litigation against South African mines. [5] [39]

Also welcomed was Khampepe's majority concurring judgment in Tshabalala v S; Ntuli v S , which contained various obiter remarks about the nature of rape in patriarchy; she characterised rape as fundamentally "an abuse of power expressed in a sexual way" and as "structural and systemic" rather than "unusual and deviant". [40] Her minority judgment in AB v Minister of Social Development was described as a "tour de force infused with both reason and compassion" and based on an expansive conception of reproductive rights. [41]

President Jacob Zuma, who appointed Khampepe to the apex court, was imprisoned as a result of her judgment in Zuma II. Zuma at Soccer City.jpg
President Jacob Zuma, who appointed Khampepe to the apex court, was imprisoned as a result of her judgment in Zuma II.

Zuma judgments

Khampepe herself considered the highlight of her career to be her defence of the rule of law in Judicial Commission of Inquiry into Allegations of State Capture v Zuma (Zuma II), the June 2021 judgment in which Khampepe wrote for the court's majority in sentencing former President Zuma to 15 months' imprisonment for contempt of court. [2] Khampepe, who was acting as Chief Justice at the time, wrote that Zuma had "left this court with no real choice" but to imprison him. [42] The ruling was significant because it marked the first time that the Constitutional Court had imprisoned someone for contempt of court, [43] but also because of its political sensitivity; Zuma's arrest the following week was followed by an outbreak of civil unrest. Khampepe later said that, though aware of the judgment's political significance, "I felt the same way that I feel when handing down any judgment... I had a sense of simply discharging my constitutional obligations". [44] Asked about the Jacob Zuma Foundation's claim that the judgment was "emotional and angry", [45] she said that she had expected "these misogynistic attacks". [44]

Described by Ferial Haffajee as a "decisive defence of the rule of law" and by Pierre de Vos as a "forceful and eloquent defence of the judiciary", [46] [43] Khampepe's Zuma II judgment was viewed as momentous and was welcomed by civil society organisations including AfriForum, Corruption Watch, Freedom Under Law, and Frank Chikane's Defend Our Democracy campaign. [47] Adriaan Basson said that the judgment was "proof of the supremacy of the Constitution and will have a chilling effect on generations of delinquent politicians", [48] and Richard Calland said that "there could be no clearer or stronger sign of the independence of the judiciary" than the judgment. [49] However, some commentators worried that the judgment neglected Zuma's right to a fair trial, [50] an argument that was made sharply by Justice Leona Theron in her dissenting judgment. [51]

In Zuma v Judicial Commission of Inquiry into Allegations of State Capture (Zuma III), a related judgment handed down three months later, Khampepe wrote on behalf of the same majority in dismissing Zuma's application for rescission of the Zuma II order. [52] Though Zuma's spokesman, Mzwanele Manyi, called this judgment a "miscarriage of justice", [53] it was commended for resisting Zuma's so-called Stalingrad tactics; quoting approvingly from Khampepe's opening paragraph, which stated that, "Like all things in life, like the best of times and the worst of times, litigation must, at some point, come to an end", Mpumelelo Mkhabela suggested that the doctrine of legal finality should be renamed the Khampepe Doctrine in her honour. [54]

Retirement

Khampepe retired from the judiciary on 11 October 2021, at the end of her non-renewable 12-year term in the Constitutional Court. [35] [55]

Higher education

In May 2022, Khampepe was appointed to succeed Wiseman Nkuhlu as the Chancellor of the University of Pretoria; she began her renewable five-year term on 28 June 2022. [56]

The following month, the University of Stellenbosch appointed her to conduct an independent inquiry into allegations of racism at the institution, which had proliferated in the wake of a video of a student urinating on a black student's belongings in the Huis Marais residence. [57] [58] Her findings, published in November 2022, pointed to "a very toxic culture" at Huis Marais, which she recommended should be addressed through various governance reforms. [59] She also recommended a review of the university's language policy, observing an enduring "cultural preference" for the use of Afrikaans, which she said caused linguistic exclusion and racial division. [60] This recommendation attracted the ire of AfriForum and of the opposition Democratic Alliance (DA), which said it would seek judicial review of the report; DA politician Leon Schreiber accused Khampepe of "equating Afrikaans with racism". [61]

In November 2022, Khampepe was appointed to an independent panel at the University of Cape Town, which, under the chairmanship of retired Judge of Appeal Lex Mpati, was tasked with investigating allegations of governance failures at the university, including alleged gross misconduct by controversial vice-chancellor Mamokgethi Phakeng. [62]

Other activities

In September 2023, Panyaza Lesufi, the Premier of Gauteng, appointed Khampepe to chair a three-member commission of inquiry into a recent deadly fire in an illegally occupied government building in Marshalltown, Johannesburg. [63] During the commission's proceedings, Khampepe recused a co-commissioner, Thulani Makhubela, saying that his involvement would create an appearance of bias because he had previously used his Twitter account to voice support for xenophobic organisations, including Operation Dudula. [64] Dudula objected strongly, accusing Khampepe of "cheap politicking" and calling for her own removal from the commission. [65]

In November 2020, Danny Jordaan announced that Khampepe would be appointed to chair the newly established ethics committee of the South African Football Association (Safa). [66] In that capacity, she was called on to investigate various allegations of corruption in Safa. [67]

Personal life

She is married to businessman Siza Khampepe, with whom she has two children, a son and a daughter, both born before she joined the bench. [4] [2] Her husband was a director of a firm, Kgorong Investment Holdings, which received a subcontract in the controversial Arms Deal; [68] reports in this connection caused a minor stir during the Khampepe Commission, because the Scorpions had investigated and prosecuted corruption in the Arms Deal. [69] [70] In June 2012, she was the victim of an armed robbery at her family home in Randburg. [71]

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Sisi Khampepe
Justice of the Constitutional Court
In office
12 October 2009 –11 October 2021
Current justices
ConstitutionalCourtofSouthAfrica-table-20070412.jpg
Former justices
Lists of judgments
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