Case CCT34/26
[2026] ZACC 31
Hearing Date: 28 May 2026
Judgement Date: 07 July 2026
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Tuesday, 7 July 2026, the Constitutional Court handed down judgment in an application for leave to appeal directly against three orders of the High Court of South Africa, Eastern Circuit Local Division, Thembalethu (High Court), and leave to cross-appeal directly against part of an order of the same Court. The applicant is Thabang Motjamela, a self-represented litigant who, in 2018, was employed temporarily under the Expanded Public Works Programme (EPWP) to conduct road maintenance for the George Local Municipality (Local Municipality). The respondent is the Local Municipality.
Upon the expiry of his EPWP contracts, Mr Motjamela pursued extensive legal proceedings before the South African Local Government Bargaining Council, the Commission for Conciliation, Mediation and Arbitration, the High Court, the Labour Court, the Labour Appeal Court, and the Constitutional Court against the Local Municipality and the Garden Route District Municipality, seeking either to be hired on a permanent basis or given a settlement. All of these efforts were unsuccessful.
Both the District Municipality and the Local Municipality sought to have Mr Motjamela declared a vexatious litigant and restrained from instituting further proceedings against them. The District Municipality was unsuccessful. However, the Local Municipality succeeded in its application, and the High Court declared Mr Motjamela a vexatious litigant and barred him from instituting legal proceedings against any party in any parallel or inferior court without leave of that court (vexatious litigant order). The applicant subsequently sought leave to appeal the judgment, and sought the recusal of the presiding Judge. The High Court suspended the applications for leave to appeal and recusal, declaring that Mr Motjamela appeared, by reason of mental illness or intellectual disability, to be unable to understand the proceeding. It issued an order requiring Mr Motjamela to submit himself for an assessment of his mental health within 10 days, and to present the resulting report to the Court in order for his matters to proceed. When Mr Motjamela failed to attend the mental health assessment, the High Court dismissed the applications for leave to appeal and recusal and issued an order barring Mr Motjamela from instituting any further proceedings before it unless accompanied by a report on his mental health (mental health assessment order). Mr Motjamela attempted to appeal the judgments and orders to the Supreme Court of Appeal, but his application was not processed due to non-compliance with court procedure.
In the Constitutional Court, Mr Motjamela argued that the vexatious litigant order and mental health assessment order, coupled with the Supreme Court of Appeal’s refusal to process his emailed application for leave to appeal, violated his right to access the courts and left direct leave to appeal to this Court as his only avenue for obtaining justice. On the vexatious litigant order, he argued that the order is overbroad, as it prevents him from instituting legal proceedings against any party in any parallel or inferior court without the leave of that court. In relation to the mental health assessment order, Mr Motjamela argued that the Local Municipality did not seek the order, and no evidence was placed before the High Court to support the order. He argued that the order violated his rights to dignity, freedom and security of person, and privacy under sections 10, 12, and 14 of the Constitution, respectively.
The Local Municipality opposed the application on the basis that it raised no genuine constitutional issue engaging this Court’s jurisdiction, and that this was merely a further example of Mr Motjamela’s vexatious litigation. It argued that vexatious litigant orders writ large are constitutionally compliant, and the order of the High Court was not overbroad in the circumstances. It further argued that Mr Motjamela’s refusal to file his leave to appeal application in person or via courier with the Supreme Court of Appeal did not constitute an exceptional circumstance warranting leave to appeal directly to this Court. Regarding the mental health assessment order, it argued that the High Court appropriately exercised its discretion under section 173 of the Constitution. It also sought conditional leave to cross-appeal directly to this Court to limit the scope of the vexatious litigant order if this Court found that its jurisdiction was engaged.
On 28 May 2026, this Court issued a partial order declaring the High Court’s interim and final mental health assessment orders unconstitutional and setting them aside. That order stated that further orders and reasons would follow by way of a short judgment.
In that short judgment, this Court found that the vexatious litigant order and mental health assessment order, coupled with the refusal of the Supreme Court of Appeal to process Mr Motjamela’s application for leave to appeal, blocked Mr Motjamela’s access to the courts. Further, the mental health assessment order infringed on Mr Motjamela’s rights under sections 10, 12 and 14 of the Constitution. The matter thus engaged this Court’s jurisdiction and leave to appeal directly was warranted. The Local Municipality’s conditional leave to cross-appeal was also granted.
On the merits, this Court found that the vexatious litigant order was overbroad. An order of such scope was not sought by the Local Municipality, and evidence was not placed before the High Court that Mr Motjamela had litigated in an abusive or vexatious manner in other matters. The order thus fell to be set aside and replaced with an order preventing further litigation by Mr Motjamela relating to the EPWP contracts.
Regarding the interim and final mental health assessment orders, this Court found that the High Court ignored established processes for addressing concerns about a litigant’s legal capacity in civil proceedings. Instead, it based its findings and issued the orders solely on the presiding Judge’s observations of Mr Motjamela from the bench, without the orders being sought and without any evidence being placed before the Court.
This Court found that an established process exists under rule 57 of the Uniform Rules of Court for the appointment of a curator ad litem (litigation guardian) to assist the court and an applicant who appears to be unable to litigate on their own behalf due to mental illness or intellectual disability. This affords the court the evidence it needs to properly assess the litigant’s situation while preserving the litigant’s dignity and privacy. The interim order and final order compelling Mr Motjamela to obtain a mental health assessment as a precondition to pursuing further litigation thus fell to be set aside and were disposed of by way of an order of this Court issued on 28 May 2026.
This Court noted the extensive litigation history between the parties, and that Mr Motjamela currently has six applications relating to his employment disputes before it. It thus exercised its inherent jurisdiction under section 173 of the Constitution to direct the Registrar not to accept any further applications from Mr Motjamela which relate to his employment disputes. The direct appeal and direct cross-appeal were upheld, the High Court’s vexatious litigant order was set aside and replaced with an order limited to Mr Motjamela’s employment disputes, the mental health assessment orders were set aside, and each party was ordered to bear its own costs.
The Full judgment here
Case CCT 126/25/24
[2026] ZACC 30
Hearing Date: 12 February 2026
Judgement Date: 07 July 2026
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Tuesday, 7 July 2026, the Constitutional Court handed down judgment in an application for confirmation of an order of the High Court of South Africa, Western Cape Division, Cape Town, declaring certain provisions of the Refugees Act 130 of 1998 unconstitutional and invalid.
The applicants are the Scalabrini Centre of Cape Town and its trustees. The respondents are the Minister of Home Affairs, the Director-General of Home Affairs, the Chief Director of Asylum Seeker Management in the Department of Home Affairs, the Refugee Appeals Authority of South Africa and the Standing Committee for Refugee Affairs. The Helen Suzman Foundation, Amnesty International, the Global Strategic Litigation Council for Refugee Rights, the International Detention Coalition and the United Nations High Commissioner for Refugees were admitted as amici curiae.
This matter concerns access to the asylum system. It raised the question whether asylum seekers may be prevented from having their claims determined on the merits because of procedural non-compliance relating to their immigration status, manner of entry into South Africa or failure to report to a Refugee Reception Office within the prescribed period.
The challenged statutory provisions are sections 4(1)(f), 4(1)(h), 4(1)(i) and 21(1B) of the Refugees Act. Broadly speaking, these provisions permit asylum seekers to be excluded from refugee status, or prevented from entering the asylum process, where they have allegedly committed certain immigration-related offences, entered South Africa other than through a designated port of entry, failed to report to a Refugee Reception Office within five days, or are not in possession of an asylum transit visa.
The High Court also declared regulations 8(1)(c)(i), 8(2), 8(3) and 8(4) of the Refugee Regulations unconstitutional and invalid. Those regulations concern the documents and explanations required from persons who seek to apply for asylum.
In the High Court, Scalabrini contended that the challenged provisions create a disbarment regime. Its case was that asylum seekers may be excluded from the asylum system solely because of procedural non-compliance, without any assessment of the merits of their claims. Scalabrini submitted that this violates the principle of non-refoulement, the Bill of Rights and international law.
The High Court upheld the challenge. It held that the challenged provisions prevent asylum seekers from accessing a merits-based determination of their claims, and that the provisions are particularly harmful to children. It therefore declared the challenged provisions and regulations unconstitutional and invalid. The matter came before this Court for confirmation of the High Court’s order of constitutional invalidity in respect of the provisions of the Refugees Act.
In a unanimous judgment penned by Majiedt J, this Court confirmed the declaration of constitutional invalidity.
This Court first considered whether it had jurisdiction. It found that the matter plainly engaged this Court’s constitutional jurisdiction because it concerned the confirmation of a declaration of constitutional invalidity of provisions of an Act of Parliament.
The Court then addressed the respondents’ purported attempt to appeal against the High Court’s declaration that the regulations are invalid. The Court held that declarations of invalidity concerning regulations do not require confirmation by this Court. Regulations are subordinate legislation. A party wishing to challenge a declaration of invalidity concerning regulations must bring a proper application for leave to appeal under rule 19 of this Court’s Rules.
The respondents did not do so. Instead, they purported to rely on rule 16 and section 172(2)(d) of the Constitution, which concern confirmation proceedings relating to Acts of Parliament, provincial Acts and conduct of the President. This was the incorrect procedure. The purported application was also substantially out of time, and no application for condonation was filed. The respondents therefore did not properly place the validity of the regulations before this Court.
The consequence was that this Court was concerned only with the constitutionality of sections 4(1)(f), 4(1)(h), 4(1)(i) and 21(1B) of the Refugees Act. The regulations, having been declared invalid by the High Court and not properly appealed, were treated as having no legal force. However, the Court considered them in a limited way to understand how the statutory scheme was intended to operate in practice.
The respondents argued that Scalabrini’s challenge was abstract and should not be entertained. This Court rejected that argument. It held that Scalabrini had placed extensive evidence before the High Court from affected persons, experts and community stakeholders. That evidence provided a sufficient factual foundation for the constitutional challenge. The Court held that, in any event, even where a challenge is abstract, courts may in appropriate circumstances consider facial constitutional challenges to legislation, particularly where rights are threatened.
Turning to the merits, this Court first considered sections 4(1)(f), 4(1)(h) and 4(1)(i). These provisions operate as procedural filters. They allow asylum seekers to be disqualified from refugee status because of immigration-related procedural non-compliance before their claims are assessed on the merits.
This Court held that this is inconsistent with the principle of non-refoulement. That principle protects asylum seekers against being returned to a country where they may face persecution or serious harm, unless and until their claims have been finally rejected after a proper merits-based process. The protection applies before formal recognition as a refugee, because a person may in substance be a refugee even before that status has been formally determined.
The Court held that procedural non-compliance, even where serious, cannot justify disbarment from the asylum system without a merits-based assessment. The impugned provisions bear no resemblance to the limited exceptions to non-refoulement recognised in international refugee law, such as where a refugee poses a danger to the security of the host state or to the community.
The respondents relied on Ruta, Abore and Ashebo. The Court held that reliance to be misplaced. Ruta and Abore confirmed the importance of non-refoulement and the need for merits-based assessment. Ashebo is distinguishable, because it concerned detention at an earlier stage of the asylum process and deliberately left open the question whether the impugned provisions are unconstitutional. That disposed of sections 4(1)(f), 4(1)(h) and 4(1)(i).
The Court then considered section 21(1B). It did so in two ways.
The first approach considered section 21(1B) together with the now-invalid regulations. On this approach, section 21(1B), read with regulation 8(3), creates a threshold process that may prevent an asylum seeker from entering the asylum system before the merits of the claim are considered.
The Court made plain that this first approach is not a departure from the well-settled principle, which this Court has previously confirmed in Marshall, that regulations may not be relied upon as an aid to the construction of the meaning of a statute. The Court found that considering regulation 8(3) in assessing the constitutionality of section 21(1B) was permissible in this case. This is because the regulation was not used to override, restrict or alter the meaning of the section. Rather, it was considered as part of the broader legislative context in which section 21(1B) operates. The regulation therefore did not dictate the meaning of the Act, but merely assisted the Court in understanding how the statutory scheme was designed to operate.
Moreover, the Court held that this scheme creates multiple and confusing standards. An asylum seeker may, in terms of different provisions in the Refugees Act, be required to show “valid reasons”, “good cause” or “compelling reasons” at different stages, to different officials, in relation to substantially the same procedural non-compliance. None of these standards is adequately defined. The scheme provides no meaningful criteria to guide decision-makers and creates a real risk of arbitrary and inconsistent decision-making.
The second approach considered section 21(1B) in isolation, without regard to the regulations. On this approach, the provision is vague and functionally ineffective. It requires an immigration officer to interview an applicant to determine whether “valid reasons” exist for the absence of an asylum transit visa, but it does not explain what counts as a valid reason, how the enquiry must be conducted, or what legal consequence follows from the outcome of the interview.
This Court held that, considered on its own, section 21(1B) permits an arbitrary exercise of public power. It subjects vulnerable asylum seekers to an additional bureaucratic process without clear standards, guidance or consequences. It therefore fails on rationality and is unconstitutional.
The Court also accepted that the challenged provisions have serious consequences for children. Where a child’s asylum claim is tied to that of a parent, the child may be excluded from the asylum system because of the parent’s procedural non-compliance. This occurs without an individual assessment of the child’s circumstances and without proper regard to the child’s best interests, contrary to the dictates of section 28 of the Constitution.
For these reasons, the Court held that sections 4(1)(f), 4(1)(h), 4(1)(i) and 21(1B) of the Refugees Act are inconsistent with the Constitution and invalid. The High Court’s order of constitutional invalidity was therefore confirmed. As to remedy, the respondents did not seek a suspension of the declaration of invalidity or any reading-in order. The Court therefore confirmed the declaration of invalidity.
Turning to costs, the Court held that the respondents must pay the applicants’ costs. The Court observed that the respondents litigated poorly in relation to their purported challenge to the High Court’s order declaring the regulations invalid. Their failure to follow the proper procedure, their delay, and their failure to seek condonation were matters of serious concern.
The Court further expressed concern about sweeping and unsupported assertions made during argument regarding Afghani and Bangladeshi nationals’ involvement in human trafficking in South Africa. The Court held that such assertions, made without an evidentiary foundation, undermined the integrity of the State’s case and risked promoting prejudicial narratives about refugees and asylum seekers. This conduct was deserving of strong deprecation.
The Court made the following order:
- 1. The order of the High Court of South Africa, Western Cape Division, Cape Town, declaring sections 4(1)(f), 4(1)(h), 4(1)(i) and 21(1B) of the Refugees Act 130 of 1998 inconsistent with the Constitution and invalid, is confirmed.
- 2. The respondents must, jointly and severally, pay the applicants’ costs, including the costs of two counsel.
.
The Full judgment here
Case CCT 25/24; CCT 27/24; and CCT 30/24
[2026] ZACC 28
Hearing Date: 19 to 21 August 2025
Judgement Date: 30 June 2026
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
Today, this Court handed down judgment in three applications for leave to appeal and one application for leave to cross-appeal a judgment of the Competition Appeal Court (CAC) delivered in January 2024 (CAC II), which involved an earlier CAC judgment delivered in February 2020 (CAC I). Both judgments arose from appeals against two Competition Tribunal decisions: one delivered in March 2023 (TRIB II) and the other in June 2019 (TRIB I).
The litigation arose from a complaint initiated by the Competition Commission in April 2015 and referred to the Tribunal in February 2017, wherein the Commission alleged that 18 banks colluded to manipulate the USD/ZAR exchange rate from 2007 until at least September 2013.
In TRIB I, the Tribunal considered whether it had personal jurisdiction over foreign banks. The Commission had argued that section 3(1), which applies the Competition Act 89 of 1998 to all economic activity “within, or having an effect within” South Africa, removed the need for common law requirements for personal jurisdiction if the alleged conduct had effects in South Africa, especially in relation to foreign banks with no presence in South Africa, the so-called pure peregrini. The Tribunal disagreed and held that the common law did not as yet recognise personal jurisdiction over the pure peregrini solely on the strength of effects. Regarding subject matter jurisdiction, it adopted the qualified effects (QE) test, that is, whether it was foreseeable that conduct would have a direct or immediate, substantial effect in South Africa.
CAC I agreed that section 3(1) did not remove the need for personal jurisdiction, but held that the common law could be developed so that personal jurisdiction might be established by showing “adequate connecting factors” between the complaint and the Tribunal (ACF test). It endorsed the QE test for subject matter jurisdiction and ordered the Commission to deliver a referral affidavit pleading qualified effects and adequate connecting factors for each respondent. The Commission did so in June 2020 and added five further banks. However, the banks raised exceptions regarding compliance with the CAC I order, and these exceptions were addressed in TRIB II. There, the Tribunal held that the affidavit sufficiently pleaded a prima facie single overarching conspiracy (SOC), satisfied the QE and ACF tests and met the pleading requirements. It upheld the joinder and dismissed the exceptions.
The disgruntled banks appealed to the CAC. CAC II applied the ACF test for personal jurisdiction, emphasising that the pleaded SOC had to show that foreign banks “entered into business with South African banks” through the conspiracy. It assessed the sufficiency of the allegations against each bank and found them sufficient only against BNP Paribas, HSBC Bank plc (HBEU), JPMorgan Chase & Co (JPM Co) and Credit Suisse Securities (CSS). It held that the affidavit was excipiable against other active respondents and further found the joinder of Nedbank, FirstRand Bank Limited (FRB) and Standard Americas Incorporated (SAI) post--referral impermissible.
The Constitutional Court, having found that both its general and constitutional jurisdiction was engaged, went on to acknowledge the Tribunal’s flexible and fairness-oriented approach to exceptions. Without casting doubt on that approach, it proposed the following general test: assuming the alleged facts in the referral affidavit are proved, could the Tribunal reasonably conclude that the Commission has made out a case for the relief sought?
This Court held, in principle, that both peremption and res judicata applied in this case and found no reason to overlook peremption, or relax res judicata. CAC I’s interpretation of section 3(1) on personal and subject matter jurisdiction was thus final. This Court noted that the Commission could have appealed CAC I but chose not to. It would thus be prejudicial to reopen the section 3(1) argument now. Finality had to prevail. In any event, the interpretation of section 3(1) was not properly before this Court as this Court could only decide issues under appeal from CAC II. In CAC II, the interpretation of section 3(1) adopted in CAC I was not an issue.
On joinder, the Court held that, contrary to what Nedbank, SAI and CSS argued, CAC I did not bar later joinder, but regulated pleading particularity for existing respondents. Regarding initiation, the Court noted that initiation, the purpose of which is to define what may be investigated, is directed at prohibited conduct and not a specific firm. A firm may not even know they were named until referral. Thus, the Court held that a fresh initiation identifying Nedbank, SAI and CSS was not necessary.
The Commission, at the Court’s request, submitted a post-hearing note identifying the legal errors – as distinct from factual errors – committed by the CAC. The Court distilled them into 13 alleged legal errors. (1) In respect of the first error, it rejected the argument that the CAC improperly conflated the requirements for pleading an SOC with personal jurisdiction. (2) Second, the Court, contrary to the Commission’s submissions, interpreted the CAC’s use of the phrase “entered into business” to require that a pure peregrini be part of an SOC including South African banks. (3) In relation to the third error, the Court found that the CAC erred in requiring, for purposes of subject matter jurisdiction, that the Commission plead that the SOC cause of action against JPM Bank arose from business conducted through its Johannesburg branch. (4) As to the fourth, there was no legal error – the CAC merely used terminology loosely when assessing sufficiency of participation in the SOC.
(5) The fifth error regarding failure to keep SOC requirements distinct was rejected as the CAC had addressed the second SOC requirement (intentional contribution) and failing that, did not consider the third requirement. (6) As to the sixth, that is, insistence on regularity of communication, this Court held that the CAC did not require frequent interaction as a legal requirement to justify a conclusion of participation – it simply considered regularity as part of its inferential reasoning. (7) The seventh error was also dismissed as the CAC never held that conduct on the Reuters platform could never in law prove cartel participation. (8) Regarding the eighth error, CAC II could not be interpreted to categorically require a firm’s trader to be named for the firm to be prosecuted for cartel conduct – it only made a factual finding of adequacy as to the manner in which this particular SOC was pleaded. (9) Similarly, the ninth error regarding insistence on active chatroom participation was fact- and case-specific. (10) The tenth error was a cumulation of errors six to nine and fell to be dismissed too. (11) The eleventh error, regarding the failure to consider the admissibility and probative value of so-called conduct evidence, this Court held that this evidence was neither ignored nor found inadmissible. It was referred to and found vague or insufficiently indicative of cartel conduct.
(12) The twelfth error, relating to attribution of a trader’s knowledge to their new employer, was rejected on the basis that pre-employment knowledge may corroborate other evidence only where there is also anti-competitive conduct after joining new employers. (13) As to the thirteenth error, relating to allegations of unwarranted speculation of the Commission’s knowledge and the CAC’s reliance on prosecution and leniency assumptions, this Court characterised the CAC’s remarks as minor “makeweight” observations. This supposed error was thus no more than a criticism of the CAC’s factual assessment.
Having dealt with the alleged errors, this Court undertook a bank-by-bank analysis. It found that BNP’s application for leave to appeal in CCT 25/24 must be dismissed whereas CSS’s appeal in CCT 27/24 must succeed. In CCT 30/24, the Commission’s appeal succeeded against JPM Bank and SAI, but failed against Bank of America Europe Designated Activity Company, Australia and New Zealand Banking Group Limited, Standard Bank of South Africa, Nomura, Commerzbank, Macquarie, HSBC Bank USA NA, Merrill Lynch Pierce Fenner and Smith Incorporated, Bank of America NA, Nedbank and FRB. In CCT 30/24, the cross-appeal by HBEU failed. Accordingly, the SOC could, at the level of pleading, proceed against the following active respondents: BNP Paribas, JPM Co, JPM Bank, Investec, SAI and HBEU. The pleaded SOC would also include Standard Chartered Bank, Citibank, Absa and Barclays, even though these banks have either settled or received leniency.
Accordingly, the Court made the following order:
Case CCT 25/24.
- Leave to appeal is refused with costs, including the costs of two counsel.
Case CCT 27/24
- 1. Leave to appeal is granted.
- 2. The appeal succeeds.
- 3. Paragraph 2 of the order of the Competition Appeal Court, insofar as it relates to the applicant in Case CCT 27/24 (the twenty-third respondent in the Tribunal proceedings), Credit Suisse Securities (USA) LLC, is set aside and replaced with the following order:
- “(a) The appeal against the joinder of Credit Suisse Securities (USA) LLC (CSS), forming part of paragraph A[1] of the Tribunal’s order, succeeds.
- (b) The Tribunal’s decision in that respect is set aside and replaced with an order dismissing the Competition Commission’s application to join CSS.”
Case CCT 30/24
- 1. The applicant, the Competition Commission (Commission), is granted leave to appeal.
- 2. The fourteenth respondent, HSBC Bank plc (HBEU), is granted leave to cross-appeal.
- 3. The Commission’s appeal is upheld in relation to the fourth respondent, JPMorgan Chase Bank N.A. (JPM Bank), and the twenty-eighth respondent, Standard Americas Incorporated (SAI).
- 4. The Competition Appeal Court’s decision in respect of JPM Bank and SAI is set aside and replaced with orders dismissing those parties’ appeals against the Tribunal’s decision.
- 5. Save as aforesaid, the Commission’s appeal is dismissed.
- 6. HBEU’s cross-appeal is dismissed.
The Full judgment here