The Jacob Zuma Foundation says it will open a criminal case against retired Constitutional Court Justice Sisi Khampepe after former president Jacob Zuma failed to have her removed from an inquiry into politically motivated crimes committed during apartheid.

The Constitutional Court dismissed an attempt by Zuma and one of his predecessors, Thabo Mbeki, to force Khampepe’s recusal.

Both former presidents may now be required to appear before the inquiry as witnesses.

The inquiry is investigating why hundreds of cases referred by the Truth and Reconciliation Commission, or TRC, were never prosecuted. The TRC was established after the end of apartheid to investigate gross human rights violations committed during apartheid. It heard testimony from victims and perpetrators and could grant amnesty to those who made full disclosure of politically motivated crimes.

The TRC identified approximately 300 cases involving people who had been denied amnesty or had never applied for it. Those cases were referred for possible prosecution, but very few resulted in anyone being charged. There are concerns that some politically connected individuals may have been shielded from prosecution or from being required to testify about their role in apartheid-era crimes.

Families of victims have waited for decades to learn whether political interference protected perpetrators.

Zuma and Mbeki argued that Khampepe could not preside impartially. The courts rejected that argument.

The proper response is to respect the ruling, appear before the commission, and answer its questions.

Instead, the Zuma Foundation plans criminal and Judicial Service Commission complaints against Khampepe.

A complaint does not establish wrongdoing. Zuma’s representatives must identify the alleged offence and produce evidence supporting it.

South Africans have seen this pattern before.

When institutions seek answers from Zuma, the response is often a succession of jurisdictional challenges, recusal applications, accusations against judges, and attacks on the legitimacy of the process.

Every litigant has the right to challenge an unfair procedure. That right does not include an entitlement to remove every judge who issues an unwelcome decision.

The inquiry must remain scrupulously fair to Zuma, Mbeki, and every other witness. It must also be allowed to complete its work.

Suspects and witnesses have already died. Evidence has deteriorated and families have grown old without receiving answers.

The issue is no longer only what happened during apartheid. It is whether democratic governments suppressed prosecutions to protect politically important people.

That question must be answered, regardless of which party or historical movement is embarrassed by the result.