Justice Sisi Khampepe
“Of course, black women such as myself must be given preferential access to the opportunities that were previously denied to us. This is because a culture of justification demands it.”
Justice Sisi Khampepe chose a life in the law because she recognised early on how apartheid affected every part of her life. She was especially passionate about using the law to help black workers after seeing the dishonourable manner in which they were treated under the apartheid system.
Early Life and Career
Sisi Khampepe was born on 8 January 1957 in Soweto. Her early memories of growing up focus on her mother, a domestic worker, who had to leave her in the care of her uncle from Natal. One day her uncle was stopped by the police who demanded to see his passbook. Unfortunately he did not have it with him and was arrested, in front of her, and jailed for 90 days. Shortly after his release, he was sent back to Natal where he was stabbed to death. Khampepe’s mother blamed the pass law for his death. The injustice of her uncle’s forced return to Natal and his resulting death, further cultivated Khampepe’s interest in the legal profession.
Khampepe obtained a B Proc degree from the University of Zululand in 1980, and an LLM degree at Harvard Law School, Massachusetts, USA in 1982.
I not only made it, I made it cum laude, but I always lived with this knowledge that law was not for women and that I was an exception to the general rule that law was not meant for women, and regrettably this view I got even from black lecturers.
Sisi Khampepe
Justice of the Constitutional Court
Khampepe began her career as a legal advisor in the Industrial Aid Society, where she did vacation work from 1979 to 1980. She served as a fellow in the Legal Resources Centre. In 1983, she joined Bowman Gilfillan Attorneys as a candidate attorney.
Khampepe describes the difficulties she faced as a young, black, female lawyer:
I think clients did not want to be serviced by a black person let alone a black woman. I had those prejudices which I had to live with … I would not stand being ridiculed by clients and I was not going to go away from the litigation department simply because clients indicated their disinterest in being serviced by me.
Sisi Khampepe
Justice of the Constitutional Court
After being admitted as an attorney in 1985 Khampepe established her own law firm, SV Khampepe Attorneys. The firm was renowned for defending the rights of workers against unjust laws and unfair employment practices. She also represented other human rights bodies such as civic and black consumer unions.
I was a labour lawyer at heart, through and through. I went to trade unions affiliated to COSATU (Congress of South African Trade Unions) and NACTU (National Council of Trade Unions) to give me support as a labour lawyer. When I started I was the only one, but with time I employed an associate and also made sure that I got as many articled clerks as I could just so that people did not go through what I went through when I was looking for work as an articled clerk.
Sisi Khampepe
Justice of the Constitutional Court
In 1995 Khampepe was appointed by President Nelson Mandela as a Truth and Reconciliation Commission (TRC) Commissioner. The following year she was appointed as a member of the TRC’s Amnesty Committee. She was then employed by the Department of Justice and Constitutional Development as Deputy National Director of Public Prosecutions, a post she held from September 1998 to December 1999. In December 2000 she was appointed as a judge in the High Court (TPD), and in 2007 her appointment to the Labour Appeals Court followed.
In 2004 Khampepe was appointed by President Thabo Mbeki to oversee the elections in Zimbabwe. She served as a member of the Commonwealth Observer Group to the presidential and parliamentary elections in Uganda in February 2006.
Appointment to the Constitutional Court
Khampepe was appointed to the Constitutional Court of South Africa in October 2009.
I remember in 1996 I was asked by one of my colleagues at the Truth and Reconciliation Commission (TRC) if I didn’t want to go to the Constitutional Court at that time and I said no. I was with the TRC and I felt I can’t leave the work of the TRC incomplete as it would have a very negative reflection of myself. I didn’t know that the opportunity would come around later on.
Sisi Khampepe
Justice of the Constitutional Court
Judgments of Interest
Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another (2013)
This was a case where the Constitutional Court, in a judgment written by Justice Khampepe, opted to protect children’s sexual development by holding that it was unconstitutional to criminalise consensual sexual activity of children between the ages of 12 and 16 years old.
Children are precious members of our society and any law that affects them must have due regard to their vulnerability and their need for guidance. We have a duty to ensure that they receive the support and assistance that is necessary for their positive growth and development. We must be careful, however, to ensure that in attempting to guide and protect children, our interventions do not expose them to harsh circumstances which can only have adverse effects on their development.
Justice Sisi Khampepe
the Teddy Bear judgment, 3 October 2013
Mankayi v AngloGold Ashanti (2011)
Thembekile Mankayi, a mineworker, sued AngloGold for damages he suffered consequent to the occupational lung diseases that he contracted as a result of the negligence of AngloGold which meant he was no longer fit to work underground. Mankayi challenged the constitutionality of legislation that prevented him from claiming additional compensation for the damages he suffered. In a judgment written by Justice Khampepe, the Constitutional Court found that mineworkers who suffer from compensatable occupational lung diseases are entitled to institute civil claims against their former employers for additional compensation. As a result of this decision, South Africa saw the biggest class action lawsuit in its history by mineworkers against mining companies.
There is no provision for payment of funeral expenses, or any lump sum or pension for dependants. The statute does however provide that the dependants of a person who died of a compensable disease would receive the lump sum that would have been payable to that person had he not died. In other words, where the person suffering from a compensable disease has been paid the lump sum, the dependants get nothing even if they are children. To make matters worse, the person who finds himself afflicted with a compensable disease merely because of legislative classification, has no right to claim additional damages even if the employer was negligent, a right that is preserved for employees who suffer occupational diseases.
Justice Sisi Khampepe
the Mankayi judgment, 3 March 2011
Family and Personal Life
Khampepe is married with two children.
I regret that I have not been there when my children really needed me, but I’m also grateful that I am a living example of what it means to be truthful to your love for your people … When you say you are a true South African you should be able to sacrifice. My daughter who is 18 years old now would always tell me when I would be unable to attend events at school that, ‘Mommy I tell them that you are looking after all the mommies and the mommies who are here must look after me.’
Sisi Khampepe
Justice of the Constitutional Court
In the Words of Others
Judge approaches everything she does with elegance and grace. Her contribution to the constitutional project of advancing human dignity and substantive equality is not only found in her substantial jurisprudence, but is also found in how she lives out her daily life … No matter how busy or stressful it is with work, Judge is always calm and composed (and dressed like she has just stepped off a runway in Milan!).
She is a role model in so many ways. In addition to her legal brilliance and experience from which there is so much to learn, she is also incredibly patient and gives her clerks room to learn and grow under her guidance and support.
Emily van Heerden
former law clerk to Justice Khampepe
Justice Khampepe is one of the kindest, most generous individuals I have ever had the pleasure to work for. She exudes compassion for every person who crosses her path. I have fond memories of spending time with Judge and my co-clerks in chambers, hearing stories of Judge’s experiences …
Judge’s approach to the law, much like her approach to life, is with patience and wisdom. She demands the highest standards from her clerks because justice requires diligence. From her I learned to think critically about the law, to consider every argument carefully, and to develop thoughtful and thorough analysis.
Shayda Vance
former law clerk to Justice Khampepe
Working for Justice Khampepe is to work for someone who is genuinely warm and giving of her time. Being her clerk feels like being a member of her family. It is a great privilege to be touched by the warmth and mentorship considering she has been witness to some of the darkest moments in this country’s history and emerged kind, forthright and fiercely independent.
Kevin Minofu
former law clerk to Justice Khampepe
