Can Judge Sisi Khampepe refuse to recuse herself from the TRC inquiry?

President Cyril Ramaphosa said last week that he would not stand in the way of efforts to remove Judge Sisi Khampepe as chairperson of the Truth and Reconciliation Commission (TRC) inquiry.

The development emerged in court papers filed in response to a legal challenge brought by former presidents Thabo Mbeki and Jacob Zuma, who are both seeking her removal from the position.

Both Zuma and Mbeki want Khampepe to recuse herself citing bias on her part. Khampepe served on the TRC's Amnesty Committee.

The commission is investigating alleged interference and concerted efforts to stop the prosecution of cases referred to the National Prosecuting Authority (NPA) by the TRC.

Ramaphosa noted that had he been aware of the allegations against Khampepe at the time of her appointment, he would not have selected her.

He stated his intention was to avoid controversy that could undermine public confidence in the commission.

Judges Matter Researcher, Mbekezeli Benjamin, said it is an extraordinary situation.

"It is quite extraordinary to hear the President say that had he known what he knows now he wouldn't have appointed Judge Khampepe to chair the commission."

Benjamin said a simple Google search confirms that Judge Khampepe was involved in the TRC process.

"The question should be asked back of President Cyril Ramaphosa and the Presidency on why they didn't do their due diligence.

ALSO READ: Ramaphosa not objecting Khampepe's recusal from TRC Inquiry

Benjamin goes on to say that where a judge recuses themselves, it is not enough for the President to say he should not have appointed them because he 'didn't do his homework.

"There is a stricter test for how a judge should recuse themselves, which is whether there is actual bias or a reasonable fear that the judge may be bias."

Thus far, no reasonable argument has been offered by the president to suggest Judge Khampepe is bias towards any of the parties, says Benjamin.

'What we are essentially facing is three presidents on one side and the Commission and Judge Khampepe on the other side."

ALSO READ: Mbeki and Zuma lose bid to have Justice Sisi Khampepe recused from TRC hearings

To listen to Mbekezeli Benjamin in conversation with Mandy Wiener on The Midday Report, click audio below: