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. 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. The
Mail & Guardian viewed these questions as indicative of the Judicial Service Commission's "soft handling" of Khampepe. The following day, upon the conclusion of its interviews, the Judicial Service Commission endorsed Khampepe and six other candidates as suitable for appointment. 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". 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.
Judicial leadership Justice
Edwin Cameron later characterised Khampepe as "perhaps the second most powerful person in this Court after the Chief Justice", especially given rumours that Ngcobo himself supported her elevation. 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; Over the objections of civil society groups, both Moseneke and Khampepe were ultimately overlooked in favour of Justice Mogoeng Mogoeng. 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. 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. 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.
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". 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. 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; this holding enabled an unprecedented flurry of
class action litigation against
South African mines.''' 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". 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. , who appointed Khampepe to the apex court, was imprisoned as a result of her judgment in
Zuma II. Zuma judgments Khampepe herself considered the highlight of her career to be her defence of the
rule of law in
Judicial Commission of Inquiry into Allegations of State Capture v Zuma (
Zuma II), the June 2021 judgment in which Khampepe wrote for the court's majority in sentencing former President Zuma to 15 months' imprisonment for
contempt of court.''' The ruling was significant because it marked the first time that the Constitutional Court had imprisoned someone for contempt of court, but also because of its political sensitivity; Zuma's arrest the following week was followed by
an outbreak of civil unrest. Khampepe later said that, though aware of the judgment's political significance, "I felt the same way that I feel when handing down any judgment... I had a sense of simply discharging my constitutional obligations". Asked about the
Jacob Zuma Foundation's claim that the judgment was "emotional and angry", she said that she had expected "these misogynistic attacks".
Adriaan Basson said that the judgment was "proof of the supremacy of the
Constitution and will have a chilling effect on generations of delinquent politicians", and
Richard Calland said that "there could be no clearer or stronger sign of the
independence of the judiciary" than the judgment. However, some commentators worried that the judgment neglected Zuma's
right to a fair trial, an argument that was made sharply by Justice
Leona Theron in her dissenting judgment. In
Zuma v Judicial Commission of Inquiry into Allegations of State Capture (
Zuma III), a related judgment handed down three months later, Khampepe wrote on behalf of the same majority in dismissing Zuma's application for rescission of the
Zuma II order. Though Zuma's spokesman,
Mzwanele Manyi, called this judgment a "
miscarriage of justice", it was commended for resisting Zuma's so-called
Stalingrad tactics; quoting approvingly from Khampepe's opening paragraph, which stated that, "Like all things in life, like the best of times and the worst of times, litigation must, at some point, come to an end", Mpumelelo Mkhabela suggested that the
doctrine of legal finality should be renamed the Khampepe Doctrine in her honour. == Retirement ==