Sisi Khampepe

Practice as an attorney

Upon her return to South Africa, Khampepe struggled to find a placement for her articles of clerkship at any of the few firms that would allow her to practice labour law.^[2] With the assistance of her teenage inspiration, Helen Suzman, and the Legal Resources Centre's Felicia Kentridge, she was ultimately recruited as a candidate attorney at Bowman Gilfillan, where she served her articles from 1983.^[2] She later said that the firm's clients were resistant to being represented in litigation by a young black woman.^[5]

After she was admitted as an attorney in the Transvaal in 1985,^[1] Khampepe established her own firm, SV Khampepe Attorneys, of which she remained the sole director for the next decade.^[5] Her clients included hawkers, civic organisations, black consumer unions (including the National Black Consumer Union from 1985 to 1986), and the Orlando Pirates Football Club.^[1] However, she specialised in labour law, later describing herself as having been "a labour lawyer at heart, through and through".^[5] Her firm frequently defended workers against unfair employment practices, and it also represented various trade unions affiliated to the progressive National Council of Trade Unions and Congress of South African Trade Unions.^[1] As national legal advisor to the South African Commercial, Catering and Allied Workers Union, she was a trustee of the union's investment trust when it was established in the 1990s; and from 1990 to 1995, she was the administrator of the trade unions' fund of the international Federation international des employés.^[1] She was also a member of the Black Lawyers' Association throughout her legal career, and, in Soweto, she was a facilitator of the local street committee.^[1]

Truth and Reconciliation Commission

On 15 December 1995, Khampepe was among the 17 individuals appointed by President Nelson Mandela to the post-apartheid Truth and Reconciliation Commission, chaired by Archbishop Desmond Tutu. She served in the commission's Amnesty Committee, which heard applications for grants of amnesty to those who had committed politically motivated human rights violations.^[6] There she worked closely with Bernard Ngoepe, another commissioner and a judge, who became a mentor to her and ultimately influenced her decision to join the judiciary.^[2]

National Prosecuting Authority

Upon the conclusion of the commission's work, in September 1998, Khampepe was appointed to the newly established National Prosecuting Authority as Deputy National Director of Public Prosecutions under Bulelani Ngcuka. She held that position until December 1999.^[1]

Khampepe Report

In 2002, President Mbeki appointed Khampepe and Judge Dikgang Moseneke to lead a judicial observer mission to the 2002 Zimbabwean presidential election, the outcome of which was disputed due to claims of vote-rigging by Robert Mugabe's ZANU–PF. Khampepe and Moseneke's report, the so-called Khampepe Report, was not published; instead, Mbeki relied on a favourable report from another mission, the larger South African Observer Mission, in endorsing Mugabe's re-election as valid.^[9] The Mail & Guardian subsequently launched a prolonged campaign to gain access to the Khampepe Report, lodging a request in terms of the Promotion of Access to Information Act and fighting governmental appeals, under three successive South African presidents, in three courts.^[10][11] The report was finally made public in November 2014, and it transpired that Khampepe and Moseneke had advised Mbeki that the 2002 election was not free or fair.^[12]

Khampepe Commission

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]

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]

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]

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]