There are a few wrinkles in the wrangling over the entitlement of retired Constitutional Court judge Sisi Khampepe to preside in the inquiry into alleged political interference in the processes required in the wake of the work of the Truth & Reconciliation Commission.

In general, it is the constitutional duty of the president to appoint commissions of inquiry of the kind here in question, but this is not an invariable rule. For example, in the state capture fracas the chief justice was tasked (at the instance of the public protector) with identifying and appointing the commissioner; he chose his deputy to preside over the Zondo commission, as it is now known.

When the Calata Group resorted to litigation, claiming constitutional damages and a commission, it asked for an order directing the chief justice to appoint the commission, presumably to avoid any whiff of impropriety involved in asking the president to have his predecessors investigated.

Before the matter was determined in court the Calata Group chose to settle with President Cyril Ramaphosa by postponing the constitutional damages claim and allowing him to appoint the commission it sought in its high court application.

The president now confesses that he did not timeously check the CV of justice Khampepe and maintains that if he had done so he would not have appointed her, as she shaped policy on issues germane to the present inquiry when she worked for the National Prosecuting Authority in the ’90s.

The president should know that all prosecution policy is subject to the concurrence of the justice minister under section 179(5)(a) of the constitution. It is accordingly a bit of a stretch to accuse any single individual of authorship of prosecution policy.

Ramaphosa does know that he was deputy to Jacob Zuma during his second presidency and is thus conflicted regarding choosing commissioners to inquire into the Calata Group’s complaints, because Zuma stands accused of involvement in the political interference.

Paul Hoffman