Former president Thabo Mbeki has launched an urgent court bid to stop the commission of inquiry probing political interference in apartheid-era prosecutions from forcing him to testify.
He argues that the process has become unconstitutional, unlawful and fundamentally compromised by questions over the impartiality of its chairperson, retired Constitutional Court justice Sisi Khampepe.
In the founding papers filed in the Johannesburg high court on May 19, Mbeki makes clear that he is not refusing to co-operate indefinitely with the commission, but is resisting being compelled to give evidence while his Constitutional Court challenge over Khampepe’s continued role remains unresolved.
The commission — established by President Cyril Ramaphosa in May last year — is investigating allegations that political interference prevented the proper prosecution of Truth and Reconciliation Commission (TRC)-related crimes.
According to the commission’s terms of reference, the inquiry is examining “whether, why and to what extent and by whom efforts were made to stop the SAPS and the National Prosecuting Authority from investigating and prosecuting TRC cases”. The papers note that since interference with prosecutions is a criminal offence, the commission may recommend that implicated individuals be criminally charged.
Mbeki and former justice minister Brigitte Mabandla were served with summonses ordering them to appear before the commission on May 27 and 28 to give oral evidence. But Mbeki argues that compelling him to testify before a commission whose leadership he is actively challenging would undermine his constitutional rights and potentially taint the legitimacy of the proceedings.
“We have a right to appear before an impartial commission and to access a court to challenge the recusal ruling,” Mbeki states in the affidavit.
He argues that a summons to appear before the commission “has potentially invasive and destructive consequences” for a person’s rights, including “personal freedom and security”.
At the centre of the dispute is Khampepe’s refusal to recuse herself from chairing the commission after Mbeki, former president Jacob Zuma and others raised concerns about her impartiality.
We are thus placed in an untenable position. Either submit to proceedings that we have reasonable and legally grounded cause to challenge or face criminal liability for our refusal to do so.
The court papers reveal that Mbeki and Zuma relied on two central grounds in seeking her removal: Khampepe’s historical involvement in the TRC Amnesty Committee between 1998 and 2001, and her previous role as deputy national director of public prosecutions between 1998 and 1999.
The applicants also accused Khampepe of mishandling issues surrounding the commission’s evidence leader, Adv Ishmael Semenya SC, and endorsing what they described as procedural irregularities in the gathering of evidence.
Though Khampepe refused to recuse herself, Mbeki and Zuma subsequently launched review proceedings challenging that decision.
A full bench of the high court later dismissed the application on technical grounds, ruling that consent from the chief justice was required before civil proceedings could be instituted against a judge in terms of section 47 of the Superior Courts Act.
Mbeki has since sought leave to appeal directly to the Constitutional Court while simultaneously approaching the Supreme Court of Appeal.
He argues that until those proceedings are concluded, the commission should not be allowed to compel him to testify.
The papers repeatedly stress that Mbeki is willing to co-operate with a “lawfully constituted commission” chaired by a person “whose impartiality is without question”. However, he claims the current summonses were issued in bad faith and form part of an attempt to undermine the pending Constitutional Court proceedings.
“The summons were issued with the sole purpose of securing our attendance at the commission, to appear before the chairperson, with full knowledge of our apprehension of bias against her and thereby undermining the pending appeal proceedings and our constitutional rights,” Mbeki states.
He further accuses the commission of abusing its coercive powers in an effort to force participation before the Constitutional Court has ruled on whether Khampepe can lawfully continue presiding over the inquiry.
“The commission’s attempts to enforce compliance is an abuse,” the papers read. “The commission knows that the chairperson’s sitting may be declared unlawful.”
Mbeki also argues that the timing of the summonses is deeply suspicious. According to the affidavit, the commission had possessed information relating to him since at least February this year, yet only moved to issue subpoenas after the Constitutional Court appeal process had already begun.
“Instead of issuing the subpoena as soon as possible after February 16 2026 or April 30 2026, the commission bided time,” Mbeki argues. “It only issued the subpoena on May 14 2026, when it had three months from February 2026.”
He claims this demonstrates that the commission’s real objective is to render the Constitutional Court proceedings “meaningless” by forcing witnesses to testify before the legality of the commission’s current composition can be tested.
The papers repeatedly highlight the potentially criminal implications of refusing to comply with the summonses. Mbeki notes that under section 6 of the Commissions Act, failure to appear or answer questions before a commission can result in criminal sanctions, including imprisonment for up to six months.
This, he says, places him in an impossible position: either comply with proceedings he believes are constitutionally compromised, or face possible prosecution and jail time.
“We are thus placed in an untenable position,” Mbeki states. “Either submit to proceedings that we have reasonable and legally grounded cause to challenge or face criminal liability for our refusal to do so.”
He further argues that compelled testimony before a commission investigating whether he and others committed criminal offences could inflict irreversible reputational damage.
“Participation under compulsion before a commission that is investigating whether we committed what are, in substance, criminal acts — namely the unlawful interference with the prosecution of TRC cases — causes grave and continuing reputational harm,” the affidavit states.
Mbeki warns that once evidence is given before the commission in its current form, the damage cannot later be undone, even if a higher court eventually finds that the commission was unlawfully constituted.
“Once we have given evidence before the commission in its current constitution, that evidence cannot be recalled or expunged,” he says. “No subsequent court order setting aside the summonses will restore that which has already occurred.”
The former president also claims the commission is acting with undue haste in an apparent effort to conclude its work before the Constitutional Court has an opportunity to rule on the dispute over Khampepe’s role.
“The urgency with which our appearance is sought appears to be designed to ensure that the commission finalises the investigation before our application is heard by the Constitutional Court,” Mbeki states.
For now, Mbeki is seeking an interim interdict suspending the summonses and preventing the commission from compelling him to testify until the Constitutional Court processes have been finalised.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.