Case CCT 214/24
[2026] ZACC 18
Hearing Date: 10 November 2025
Judgement Date: 12 May 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, 12 May 2026, the Constitutional Court handed down judgment in an application for leave to appeal against an order and judgment of the Supreme Court of Appeal.
The applicants are the Director-General of Home Affairs; Chief Director of Asylum Seeker Management in the Department of Home Affairs (Department); the Cape Town Refugee Reception Office Manager; the Minister of Home Affairs (Minister); and the Chairperson of the Standing Committee for Refugee Affairs (Standing Committee).
The respondents, Amina Irankunda and Arava Niyonkuru, are Burundian nationals. The respondents fled from Burundi to South Africa between 2008 and 2012 and sought asylum in South Africa in terms of the Refugees Act 130 of 1998 (Refugee Act). Their asylum applications were refused by the Refugee Status Determination Officer (RSDO) on the basis that they were manifestly unfounded, which was confirmed by the Standing Committee in February and December 2014, respectively and which decisions were not challenged. The respondents lodged new asylum applications with the Department on 3 August 2018 on the basis that they had become sur place refugees because of the widespread political violence that had erupted in Burundi in 2015.
On 29 November 2018, the respondents approached the High Court on an urgent basis to compel the Department to grant them asylum seeker visas in terms of section 22 of the Refugees Act, pending the final relief in the main application which sought to compel the Minister to accept and consider the asylum seekers’ applications as sur place refugees. The High Court held that the respondents had a clear right to have their applications for asylum considered and were thus entitled to the section 22 visas they sought. However, the main application was dismissed on the basis that the respondents ought to have challenged the Department’s decision to reject their first asylum applications through judicial review instead of lodging an application to compel the consideration of their subsequent applications.
On appeal, the Supreme Court of Appeal granted an order in favour of the respondents, holding that once a refugee sur place claim has been made, there is no basis to demand that an asylum seeker return to their country of origin pending the determination of their application, nor to reject the application on the basis that the initial one had been finally determined. The appeal was consequently upheld and the Department was directed to accept the respondents’ sur place refugee applications.
The applicants submit that this matter engages this Court’s constitutional and general jurisdiction as it concerns the interpretation of the Constitution and national legislation passed to give effect to South Africa’s international law and constitutional obligations owed to asylum seekers. The issues, it submits, involve the interpretation of whether the Refugees Act recognises or permits asylum seekers to lodge second or further applications for asylum once their initial asylum seeker application has been declined. The applicants submit further that the Refugees Act makes no provision for a second or repeat application for asylum – either based on “new facts” or on any other basis – and no right to reapply exists in any of the international law instruments recognised in section 1A of the Refugees Act.
The respondents submit that leave to appeal should be refused as the applicants lack prospects of success in this appeal. The respondents submit that the applicants’ approach misunderstands the nature of the right of non-refoulement and the protections flowing from that right. They posit that non-refoulement is not a right to a procedure but a substantive human right to protect persons from being returned to countries where they reasonably fear persecution or irreparable harm. A final rejection of their initial application, it is submitted, does not extinguish their entitlement to the right of non-refoulement. They submit that the Refugees Act makes provision for subsequent sur place applications and this recognition is in line with South Africa’s obligations under international law.
Scalabrini Centre of Cape Town and Trustees of the Scalabrini Centre of Cape Town have been admitted as amici curiae in this matter and submit that the Refugees Act, in light of constitutional and international law obligations, both permits and requires the consideration of sur place and subsequent applications.
The first judgment distilled two primary issues for determination. First, whether the Court had jurisdiction to hear the matter and, if so, whether leave to appeal should be granted. Second, whether failed asylum seekers have a right under the Act to make subsequent applications for asylum. This turns on the proper interpretation of the Act, specifically whether it provides a clear right to submit subsequent asylum applications.
In a majority judgment written by Kollapen J (with Mlambo DCJ, Mathopo J, Mhlantla J, Musi AJ, Savage J and Tshiqi J concurring) it was held that the matter engaged both the Court’s constitutional and general jurisdiction in that it concerns the interpretation of national legislation passed to give effect to South Africa’s international law and constitutional obligations owed to asylum seekers, and regards an arguable point of law whether a person has a right to make subsequent applications for asylum. It also found that the issues implicated in this matter are significant and extend beyond the interests of the litigating parties, and as such, leave to appeal must be granted. So too was condonation for the applicants’ 14-day delay in filing their application granted.
Turning to the substantive issues, the first judgment identified the need to have a clear understanding of the concept of sur place refugees and the related but different concept of subsequent applicants for asylum on the part of a failed asylum seeker. “Sur place” describes the situation of a person who was not a refugee when leaving their country of origin but who thereafter becomes a refugee as a result of changed circumstances. The Court in Ruta v Minister of Home Affairs [2018] ZACC 52 described sur place refugees as international category of refugees that enter a country on one basis, and are involuntarily rendered refugees due to supervening events in their countries of origin. It is incorrect to use the term sur place to describe the situation when a failed asylum seeker makes a subsequent application for asylum “sur place” based on changed circumstances.
The first judgment found that a first-time sur place application is in truth no different from an ordinary claim to asylum and must be processed in the same way. However, subsequent sur place claims rest on a different footing and there are valid reasons for treating them differently. Such claims would follow a failed asylum application and would generally warrant considerations that were not applicable in a first-time application – most importantly, evidence of a change in circumstances which may lead a decision maker to grant instead of refuse asylum. In this regard, the first judgment considered the foreign jurisdictions of New Zealand, the United Kingdom and the European Union all of which govern subsequent requests for asylum differently to first-time applications.
In reaching a decision in this matter, the first judgment then addressed the interpretation of the Act, relying on the trite principles of legislative interpretation, considering the language used in the Act, understood in its context and with regard to the purpose of the legislation. In doing so, it reiterated the true issue at the heart of the matter: being whether the Act, properly interpreted, creates the right for a failed asylum seeker to make subsequent applications. It is not about whether, as a matter of policy, such a right should exist in the scheme of the refugee protection framework in South Africa. The first judgment does not address that issue as it was not pleaded or before the Court for determination.
The first judgment found that beyond defining what is abusive, there is nothing else in the section 1 definition, or the Act as a whole, which provides for the right to make a subsequent application. If the Act evidences a right to make subsequent applications, then it should at the very least describe the right and what it entails, as well as how it is to be exercised. This is how other jurisdictions deal with recognising the difference between a first and a subsequent application. It would require a giant leap in reasoning to suggest that the mere inclusion of a reference to prior applications in the definition section coupled with the absence of provisions excluding such applications is dispositive in answering the question as to the existence of a right.
The Act, if interpreted as the respondents argued and in the absence of a framework for subsequent applications, will result in every subsequent application, irrespective of its merit, being treated in the same way as a first application. Such a subsequent applicant would follow the ordinary course of having an interview and a full determination of the application and would also be entitled to the review and appeal rights that attach to a first application. In those circumstances, which the Supreme Court of Appeal described as a never-ending cycle, an unsuccessful applicant for asylum will never be capable of being returned to their country of origin. This is not the practical system that Ruta described.
In upholding the appeal, the first judgment concluded that the Act cannot bear the weight of subsequent asylum applications, as it stands, and to conclude differently would place those applications in a framework which was not designed to accommodate them. So too will it invite the inevitable chaos which accompanies what at best may be described as vagueness.
In the circumstances, the first judgment, which commanded the majority, granted leave to appeal, upheld the appeal, set aside the order of the Supreme Court of Appeal, and in its place made an order dismissing the appeal from the High Court to the SCA.
In a joint dissent, Rogers J and Nicholls AJ took the view that the Act is reasonably capable of an interpretation that allows a further application for asylum after the rejection of a first one.
The dissenting judges rejected the first judgment’s absolute prohibition of the right to bring a further application. They used the example of X to demonstrate that while her first application may be rightly refused, when the conditions in her country of origin deteriorate, the guarantee of non-refoulment is removed, if no further application is permitted. Yet, when contrasted with Y, who is in the same position, but chose not to bring an earlier application, Y may apply for and receive asylum, whereas X must be deported to face persecution only because she made an earlier application. To them, this distinction is irrational and inimical to the rule of law.
Nicholls AJ and Rogers J proceeded to engage section 39(2) of the Constitution to emphasise that legislation must be interpreted to favour a reasonable interpretation that avoids constitutional invalidity. They noted that non-refoulment protects a cluster of constitutional rights and applies to all foreigners, including unlawful entrants. Thus, an approach that forces deportation in the face of a material deterioration of circumstances would violate non-refoulment and frustrate the Act’s rights-conforming approach. That approach would also fall foul of the constitutional injunction to protect the bests interests of the child, as children’s asylum status depends on the caregiver’s application. Yet, the Act can be interpreted harmoniously to safeguard non-refoulment.
They turned to section 233 of the Constitution, which requires a court to prefer an interpretation consistent with international law. Non-refoulment is a non-derogable and fundamental norm in international law. The UNHCR Guidance in particular assumes that asylum systems will have a way to consider subsequent applications or re-open cases in the event of new facts or a material change in circumstances. Given that children’s rights are also implicated, the dissent highlights the relevance of the binding injunction of international children-rights conventions to treat the best interests of refugeeseeking children as a primary consideration.
As a fundamental norm, section 2 gives non-refoulment extraordinary status and overriding force. The dissent held that this must weigh heavily towards an interpretation that does not sanction removal into persecution unless expressly stated otherwise. Even if there were an express prohibition, section 2 might prevail. However, since there is no express prohibition, the Act can be interpreted harmoniously to allow a further application if there is a material change in circumstances.
The dissent found support for this interpretation in the language of the Act. Sections 3 to 5 govern qualification, exclusion and cessation but do not treat a prior rejection as a ground of cessation or exclusion. Similarly, section 21, which governs the right to apply for asylum, does not confine a person to one application. To do otherwise is to imply a restriction, even though effect can be given to the Act without reading in a limitation. Thus, the dissent held that a person who later qualifies for refugee status under section 3 should not be barred from making a second application under section 21 because of a non-listed exclusionary ground of prior refusal.
Adopting a holistic interpretation of the Act, the dissent regarded the definition of “abusive application for asylum”, which includes the rejection of one or more prior applications without any “substantial changes in circumstances”, as a contextual indicator of the legislature’s intention. It held that it is impossible to reconcile this definition with an absolute ban, as the legislature contemplated later applications and chose to treat them as abusive only if there is no substantial change. The dissent held that this supports reading section 21 to permit a further application in appropriate cases.
The dissenting judges rejected the claim that the Act lacks a mechanism and procedure for later applications. They noted that an application made without a substantial change can be rejected as abusive and the Minister has regulation-making powers to address practical concerns (disclosure of prior refusals, identity checks, summary rejections and screening repetitive claims). Thus, the dissent held that lack of a specially tailored mechanism is no justification for reading a limitation in section 21.
The dissent held that a person whose application has been finalised falls to be dealt with as any other illegal foreigner. However, an unlawful entrant who becomes a sur place refugee by virtue of changed circumstances cannot be denied the guarantee of non-refoulment because of an earlier application. Regarding the fear of repeat applications, Nicholls AJ and Rogers J stress that deterrence should not come at the cost of deserving repeat applicants. The dissent found that the substantial change threshold and regulation-making powers provide a practical sifting mechanism and aligns with comparative practice.
Accordingly, the dissenting judgment would have granted leave to appeal but dismissed the appeal.
The Full judgment here
Case CCT 35/24
[2026] ZACC 10
Hearing Date: 26 November 2024
Judgement Date: 08 May 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 Friday, 8 May 2026, the Constitutional Court handed down judgment in an application brought by the Economic Freedom Fighters (EFF) and the African Transformation Movement (ATM) regarding the Phala Phala controversy, which concerns the alleged theft of a large sum of foreign currency from the private Phala Phala Wildlife Game Farm (Phala Phala) of President Cyril Matamela Ramaphosa (President), and the circumstances surrounding that incident. Three judgments were produced. The first judgment is written by Maya CJ, with Madlanga ADCJ, Rogers J and Theron J concurring. The second judgment is penned by Kollapen J, with Mathopo J, Seegobin AJ and Tshiqi J concurring. The third judgment is written by Majiedt J, with Mhlantla J and Tolmay AJ concurring.
Background
In June 2022, the ATM submitted a motion to the Speaker of the National Assembly (Speaker) in terms of section 89 of the Constitution and rules 129A to 129Q of the Rules of the National Assembly (NA Rules), requesting the National Assembly to initiate an inquiry into the removal of the President from office for his conduct in the Phala Phala controversy. The Speaker appointed an Independent Panel which produced a report on 30 November 2022 (Report), finding that that the information before it prima facie (on the face of it) established that the President may have committed, among other things, a serious violation of the Constitution and the law, and serious misconduct. On 13 December 2022, the Report came before the National Assembly for a debate and vote on whether to refer the report to the Impeachment Committee. The National Assembly voted against referring the Report to the Impeachment Committee for further examination (NA vote).
The applicants approached the Court seeking to declare the NA vote as unconstitutional. In addition, the applicants sought a declaratory order that rule 129I of the NA Rules is inconsistent with the Constitution and invalid.
The respondents who opposed the matter are the Speaker; the National Assembly; the President; and the African National Congress (ANC). The other respondents are all the other political parties represented in the National Assembly and did not oppose the application.
The EFF and ATM made broadly aligned arguments before the Court. The applicants submitted that the application engages the Court’s exclusive jurisdiction because it concerns a failure of the National Assembly to fulfil its constitutional obligation under section 89(1) of the Constitution to hold the President accountable. They contended that the National Assembly acted irrationally and unlawfully by blocking the referral of the Report to the Impeachment Committee and, by extension, failed to exercise oversight of the President. The applicants further submitted that rule 129I is unconstitutional, as it allows the National Assembly to block the establishment of an Impeachment Committee even where an Independent Panel had identified a prima facie case against the President. According to the applicants, this renders the mechanism susceptible to majoritarian abuse.
The Speaker and the National Assembly accepted that the Court’s exclusive jurisdiction is engaged but argued that neither rule 129I nor the NA vote is unconstitutional, as Parliament has the authority to regulate its own processes. They submitted that the delay in challenging the NA vote is unreasonable and should not be overlooked as it rendered the matter moot.
Both the President and the ANC respectively submitted that the Court does not have exclusive jurisdiction over the challenge to the NA vote, as the applicants’ case was a simple rationality review. They each contended that that the NA vote was rational and lawful, as the Report was flawed. They further argued that the challenge to the NA vote was unreasonably delayed and should not be entertained.
The first judgment
The first judgment held that the Court enjoys exclusive jurisdiction over the challenge to rule 129I, as well as the related challenge to the validity of the NA vote. It determined that the challenges are not moot, and that the delay in challenging the NA vote, though unreasonable, could be overlooked.
On the merits, the first judgment held that rule 129I permits the National Assembly to terminate the impeachment process prematurely before a full investigation has taken place and before all relevant information has been properly ventilated. The first judgment emphasised that although section 89(1) is discretionary in relation to the decision on whether to remove the President, it imposes constitutional obligations to put in place an effective mechanism and to take appropriate action in holding the President accountable. The first judgment found that by enabling the National Assembly to halt the process before the Impeachment Committee can more fully investigate a motion found to have substance by the Independent Panel, renders rule 129I an ineffective mechanism, undermines the values of transparency and accountability, and fails the appropriate action standard. The first judgment thus set aside rule 129I as inconsistent with the Constitution and invalid.
The first judgment also held that the NA vote is tainted by the same constitutional defect as rule 129I. As such, the first judgment invalidated and set aside the NA vote as inconsistent with the Constitution, and referred the Report to the Impeachment Committee.
In respect of a just and equitable remedy, the first judgment found that a limited severance coupled with reading-in is necessary to correct the rule in compliance with the Constitution, to remain in effect until the National Assembly corrects the defect in the affected rule. It held that it would also be appropriate to refer the Report to the Impeachment Committee consistent with the reading-in remedy ordered. The opposing parties, the first to fourth respondents, were ordered to pay the EFF’s costs, including the costs of two counsel. The ATM did not seek costs.
The second judgment
The second judgment penned by Kollapen J, with Mathopo J, Seegobin AJ and Tshiqi J concurring, begins by locating its assessment of the issues in this matter in the deliberate interconnectedness and balancing of majoritarian and counter-majoritarian provisions in the Constitution. In doing so, it explored the disenfranchisement of the vast majority of South Africans prior to 1994 and recognised that majoritarian measures are often democracy-enhancing and may, where they appear in the Constitution, represent a deliberate location of political power by the drafters of the Constitution. It found that courts are obliged to respect these choices. In support of this stance, the second judgment relied on the Court’s Certification judgment when it said that “this Court has no power, no mandate and no right to express any view on the political choices made by the [Constitutional Assembly] in drafting the [new text]”.
On the basis of these principles, the second judgment concludes that the Court’s exclusive jurisdiction over the challenge to rule 129I was engaged, but not for the reasons advanced in the first judgment. Relying on the Court’s decision in EFF II, the second judgment reiterated that the only obligation imposed on the National Assembly by section 89 is the responsibility to develop rules to facilitate the removal of the President. It was whether this obligation was discharged that had to be assessed and not whether an accountability obligation on the part of the National Assembly was discharged, as the first judgment finds.
The second judgment agrees with the first judgment as to delay and mootness but diverged from its finding of unconstitutionality. Again, aligning itself with EFF II, the second judgment found that the only obligation section 89 created was for the National Assembly to put in place rules to facilitate the removal of the President, should it elect to do so, and it is against that objective that rule 129I fell to be assessed. In reaching this conclusion, the second judgment recognised section 89 as a tool of political accountability but noted that whether it is invoked is wholly within the discretion of the National Assembly and cannot be considered obligatory. In fortifying this finding, the second judgment distinguished section 89 from specific provisions of the Constitution, such as section 42(3) and 91(2), that expressly create mutual accountability obligations on the part of the President and the National Assembly.
The second judgment concluded that rule 129I is not unconstitutional in that it properly recognised and gave effect to the permissive power of the National Assembly to remove the President. It found that the permissive power of the National Assembly to remove the President contained in section 89 was a deliberate expression of majoritarianism and, in line with trite principles of the separation of powers and constitutional supremacy, the Court was obliged to respect the powers vested by section 89 and the political decisions taken by the National Assembly in preparing the NA Rules. With these considerations in mind, it concluded that rule 129I was not unconstitutional, but a proper operationalisation of the permissive powers vested in the National Assembly by section 89. All that the rule requires is that the National Assembly consider and decide upon the report and the recommendation of the Independent.
Panel. This can never be unconstitutional, nor does it allow the National Assembly to act unlawfully. Indeed, both the first and third judgments accept this, though in limited circumstances.
With respect to the challenge to the NA vote, the second judgment concluded that the Court does not enjoy exclusive jurisdiction for two reasons. First, having concluded that section 89 does not create a constitutional obligation to hold the President to account on the part of the National Assembly, it found that the failure to discharge the alleged obligation cannot be relied upon to establish the Court’s exclusive jurisdiction. Second, it concluded that the true bone of the applicants’ argument, and the discomfort expressed in the first and third judgments, in fact lies in the manner in which the National Assembly voted – and not with the rule itself. Relying on the Court’s judgment in Van Rooyen v The State, which draws a clear and unambiguous distinction between the adequacy of a rule and the exercise of power under a rule, it concluded that the appropriate remedy for this challenge lies in a review of the exercise of said power and not in invalidation of the rule. The High Court would have the jurisdiction to consider such a challenge.
Turning to the alternative request for direct access to challenge the NA vote, the second judgment concluded that there were no exceptional circumstances in this matter and the interests of justice did not favour granting direct access. It concluded that the High Court enjoyed the necessary jurisdiction to deal with a review challenge.
Finally, and in response to the first and third judgments, the second judgment outlined what it believed to be two fundamental and insurmountable contradictions in the outcomes arrived at by those judgments.
First, it cannot be that a vote taken in terms of an unlawful rule is automatically impugned by virtue of the unlawfulness of said rule said the second judgment. It explained that despite the reasons posited for the unconstitutionality of the rule in the first and third judgments, the rule, in its current form, could still yield lawful votes by the National Assembly. This would occur, for example, in circumstances where the National Assembly accepted a positive recommendation of the Independent Panel and the matter proceeded to the Impeachment Committee, or where it refused to accept a negative recommendation of the Independent Panel and the matter proceeded to the Impeachment Committee despite the Independent Panel’s finding. With this in mind, the second judgment took the view that whilst an act taken in terms of an unlawful empowering provision may be invalidated where the empowering provision is declared unlawful, this should not be considered automatic. In this context, it had already shown that the rule can produce valid votes by the National Assembly despite the invalidation of the rule. Furthermore, the second judgment noted that the same outcome as a declaration of invalidity, as ordered in the first and third judgments, could be achieved through a rationality challenge to the vote. Thus, it raised the inevitable but unanswered question: why unnecessarily impugn the rule when the same outcome may be achieved through a challenge to the NA vote?.
Second, the second judgment considered that the order proposed by the first and third judgments would oblige the National Assembly to accept a positive recommendation from the Independent Panel but would allow it the discretion to overturn a negative recommendation from the Independent Panel, if need be. The second judgment held that there was no conceivable reason for this contradictory approach to positive and negative recommendations from the Independent Panel. On the one hand, it recognises the validity of the National Assembly’s power to grapple with a negative recommendation from the Independent Panel, whilst denying it the exercise of such power when a positive recommendation is made. This, says the second judgment, supported its conclusion that the source of the first and second judgments’ discomfort was with the NA vote which it was obliged to address through a challenge to the NA vote, without impugning the rule.
On these bases, the second judgment would have found exclusive jurisdiction in the challenge to the rule but would have dismissed said challenge as rule 129I passes constitutional muster.
The third judgment
The third judgment, penned by Majiedt J, with Mhlantla J and Tolmay AJ concurring, agreed with the first and second judgments’ reasoning and findings on exclusive jurisdiction with respect to the rule, that is, that the Court has exclusive jurisdiction to consider its constitutionality. The third judgment, like the first judgment, found that rule 129I is unconstitutional, but on a different basis.
The third judgment held that rule 129I deprives the full National Assembly of the opportunity to vote on the existence of a ground for impeachment, and it precludes a full ventilation of the facts that inform the vote. The National Assembly is constitutionally obliged to determine whether the President has committed conduct falling within section 89(1), and that determination must be rational, evidence-based, and attributable to the National Assembly as the ultimate decision-maker.
In EFF II, the Court interpreted section 89(1) as entailing a structured two-stage process. First, there must be an investigative and evaluative stage in which the relevant facts are gathered and assessed. Second, there must be a decision stage in which the National Assembly determines whether the jurisdictional facts for removal exist and, if so, whether to remove the President. While the investigative and evaluative tasks may be performed by committees or through other mechanisms, the constitutional obligation to determine whether a ground for removal exists rests solely with the National Assembly.
The third judgment held that rule 129I inserted a third, antecedent step prior to rule 129J. Once a motion is initiated and referred to an Independent Panel, the Independent Panel conducts a preliminary assessment and reports on whether sufficient evidence for an inquiry exists. Thereafter, the National Assembly is required to vote, not on whether a section 89 ground exists, nor on whether the President should be removed (that is, the two steps envisaged in EFF II), but on whether a section 89 inquiry should proceed further. If the National Assembly resolves not to proceed, the process terminates at that point, and the section 89(1) impeachment motion is never voted on. The National Assembly never gets to consider either the first or the second stage. This is a fatal flaw and a violation of the Constitution. The impugned rule, as it stands, requires the National Assembly to first step back and decide whether to engage in that process at all, and permits the process to be halted before it even begins.
Even if the National Assembly were to consider the Independent Panel’s report, its vote at the rule 129I stage remains a procedural decision, rather than a substantive constitutional determination. It is not a finding about whether the President has committed a serious violation, or misconduct, nor does it pronounce on his or her inability to perform the functions of office. The fact that the National Assembly never applies its mind to the section 89(1) question is further underscored by rule 129M, which takes place at the Impeachment Committee stage. That stage is never reached if the National Assembly decides not to proceed beyond the Independent Panel. Rule 129M provides that, once the National Assembly has resolved to proceed, the Impeachment Committee must “establish the veracity and, where required, the seriousness of the charges”. This necessarily means that the National Assembly’s consideration under rule 129I is not related to the veracity of the report.
The National Assembly is therefore expected by the impugned rule to make a decision in the absence of the information that the Constitution requires for that decision. The result is that the preliminary stage does not facilitate the constitutional inquiry; it displaces it. This also undermines the majoritarian design of section 89(1). The Constitution envisages that the decisive judgment, whether to remove the President, is to be taken by a special majority of the National Assembly (two-thirds) after engagement with the merits. But, because rule 129I allows the process to be halted at the threshold, the National Assembly is never called upon to make that value judgment. In summary, rule 129I introduces an impermissible preliminary step that allows the National Assembly “to decide whether to decide”.
In addition to the reasoning above, the third judgment held that the section 89 power cannot be exercised without a factual foundation. In order for a section 89(1) ground to be established, there must be a partly factual, (does there exist conduct capable of meeting such a ground?), and partly normative (does the conduct meet the level of seriousness envisaged by that section?) finding. That vote, as the rules stand, relates neither to the factual finding nor the normative determination of whether a listed ground exists.
The third judgment further held that this state of affairs results in a lack of transparency and openness in the process. The Independent Panel conducts its work on a limited written record, and the more rigorous processes of testing evidence, assessing veracity and evaluating seriousness are reserved for the Impeachment Committee stage. If the process is halted before that stage is reached, the National Assembly’s decision is taken without the benefit of a full and public exposition of the issues.
The absence of transparency has consequences beyond the immediate decision. Where evidence is properly tested and placed in the public domain, it equips the electorate with information that bears directly on the exercise of political choice, including at the next election. It also enhances the conditions under which members of the National Assembly themselves deliberate. This does not mean that the National Assembly is obliged to reach any particular outcome, nor does it diminish its authority to decide whether to remove the President. It means only that the process through which that authority is exercised must be sufficiently open to allow for meaningful public scrutiny of the issues and the decision.
The third judgment concluded that rule 129I is unconstitutional and must be set aside. It further holds that the NA vote must likewise be set aside because it was taken under an invalid rule that prevented the National Assembly from properly determining whether a ground for impeachment existed. The NA vote therefore lacked a lawful foundation. Applying Genesis Medical Schemes v Registrar of Medical Schemes, the third judgment held that, once the rule is set aside, the vote taken under it cannot stand.
The Full judgment here
Case CCT 72/24
[2026] ZACC 15
Hearing Date: 23 September 2025
Judgement Date: 22 April 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 22 April 2026, the Constitutional Court handed down judgment in an appeal concerning the interpretation and application of the General Anti-Avoidance Rules (GAAR) contained in sections 80A to 80L of the Income Tax Act 58 of 1962 (ITA).
The applicants were Absa Bank Limited (Absa) and its wholly owned subsidiary, United Towers (Pty) Limited. The respondent was the Commissioner for the South African Revenue Service (SARS). The appeal concerned the lawfulness of additional tax assessments issued by SARS for the 2014 to 2018 tax years.
This case arose from a complex funding structure involving multiple entities within the Macquarie Group. Between 2011 and 2015, Absa and United Towers invested approximately R1.9 billion in preference shares issued by PSIC Finance 3 (RF) (Pty) Limited. These investments yielded dividends treated as tax exempt. Unknown to the applicants, the funds flowed through additional entities, including PSIC Finance 4 and the Delta 1 Trust, before ultimately returning to entities within the Macquarie Group.
Through a series of transactions, taxable interest income was converted into tax exempt income derived from Brazilian government bonds. This income was then channelled back through the structure and distributed to Absa as dividends.
Following an audit, SARS invoked the GAAR provisions and issued notices under section 80J of the ITA. SARS determined that the arrangement constituted an impermissible avoidance arrangement, recharacterised the dividends as taxable interest, and issued additional assessments.
Absa challenged the assessments in the High Court, contending that it was not a “party” to the avoidance arrangement and that it had not obtained a “tax benefit” as contemplated in the ITA. The High Court set aside the assessments. The Supreme Court of Appeal overturned that decision, finding that the issues raised were not purely legal and that the High Court should not have entertained the review.
In earlier proceedings before this Court, leave to appeal was granted and the High Court’s jurisdiction to determine the matter was confirmed. The present appeal concerned the substantive merits of the assessments.
Two principal issues arose. First, whether Absa was a “party” to an impermissible avoidance arrangement within the meaning of section 80L of the ITA, notwithstanding its asserted lack of knowledge of the full structure. Secondly, whether Absa obtained a “tax benefit” as contemplated in the GAAR provisions.
The First Judgment
The majority judgment, penned by Majiedt J, concurred in by Mlambo DCJ, Kollapen J, Mathopo J, Mhlantla J, Musi AJ, Savage AJ, Theron J and Tshiqi J, dismissed the appeal.
On the first issue, the majority judgment adopted a purposive and objective interpretation of “party”. It held that participation in an avoidance arrangement did not require knowledge of every step in the structure. The enquiry was whether, viewed objectively, the taxpayer’s conduct formed part of the chain of transactions constituting the arrangement. This reflected the design of the post-2006 GAAR, which deliberately shifted the focus away from subjective intention and towards the objective effect and structure of the arrangement as a whole.
The Court found that Absa’s capital investment was a constitutive element of the scheme. Without that investment, the downstream transactions would not have occurred. Its role was not incidental, but foundational to the operation of the structure. Absa therefore participated in, and was a party to, the arrangement within the meaning of the Act. To hold otherwise would permit a taxpayer to facilitate an avoidance structure while avoiding its consequences by disclaiming knowledge of its inner workings.
On the second issue, the Court held that Absa did obtain a tax benefit. It emphasised that the proper analysis required the arrangement to be assessed with its avoidance features stripped away, so as to reveal its economic substance. This avoided an over-reliance on the formal characterisation of the transactions and ensured that the enquiry was directed at what the arrangement, in substance, achieved.
On that basis, the economic substance of the transaction was that of a loan generating taxable interest, rather than a genuine preference share investment yielding tax exempt dividends. The dividend form was the product of the structure, not its commercial reality. The Court concluded that the arrangement converted what would otherwise have been taxable income into tax exempt income, resulting in an enhanced return to Absa. This constituted a tax benefit within the meaning of the GAAR, because the exemption flowed from the structuring of the transaction rather than from any independent commercial rationale.
The Court further held that, in any event, the GAAR permitted SARS to determine the tax consequences for any party to an impermissible avoidance arrangement, and was not confined to the party that directly obtained the tax benefit. This underscored the breadth of the remedial powers conferred by the statute and ensured that the operation of GAAR was not defeated by the use of intermediary entities or the fragmentation of complex arrangements.
The majority judgment emphasised that the purpose of the 2006 amendments to the GAAR was to strengthen the regime and to prevent sophisticated, multi-layered avoidance schemes. A narrow interpretation requiring full knowledge of all steps would undermine that purpose and enable avoidance through deliberate ignorance.
The Second Judgment
The second judgment (dissenting), authored by Rogers J, disagreed with the majority judgment on two key issues: whether Absa was a “party” to the alleged impermissible tax avoidance arrangement; and whether it obtained any “tax benefit” from that arrangement.
On the first issue, the second judgment emphasised that under section 80B of the Income Tax Act, SARS may impose consequences only on a “party” to an arrangement. This required SARS to clearly define the arrangement and show Absa’s participation in it. Rogers J stressed that being a “party” entails at least knowledge of the arrangement and an intention to participate in it. One cannot be said to participate in an arrangement they are unaware of.
Against this background, the second judgment found that Absa’s involvement was limited to its initial investment (subscription for preference shares in PSIC3) and related protective mechanisms. The subsequent steps, including the critical Brazilian interest swap that allegedly triggered a tax advantage, were implemented without Absa’s knowledge. Accordingly, Absa could not be regarded as a party to the full arrangement as characterised by SARS. Treating it as such was, in his view, a legal error.
On the second issue of whether Absa derived a “tax benefit” (on the assumption that it was a “party” to the entire arrangement), Rogers J concluded it did not. The alleged tax benefit arose from the Brazilian swap and accrued to other entities (the D1 Trust and PSIC4), not Absa. Determining a tax benefit requires comparing the actual outcome with a counterfactual scenario excluding the impermissible step. Had it not been for the Brazilian interest swap, the interest earned by the D1 Trust and distributed to PSIC4 through the conduit principle would have been taxable in the hands of PSIC4. In the premises, D1 Trust and PSIC4, not Absa, avoided tax liability and got a tax benefit.
The second judgment further held that the GAAR is designed to eliminate the tax benefit in the hands of the party that obtained it. It does not permit SARS to impose tax consequences on a different party who neither benefited nor participated in the avoidance. Absa’s returns (dividends from preference shares) were exempt under ordinary tax rules and were contractually secured, meaning its position was unaffected by the downstream tax structuring. Any indirect economic gain did not amount to a GAAR “tax benefit”.
The second judgment rejected SARS’ argument that it could target any participant regardless of who obtained the benefit, noting that both the statutory text and established practice focus on the tax-benefitted party. A survey of comparative approaches from selected jurisdictions similarly supports the restriction of the taxing authority’s remedial powers to denying the tax benefit only in the hands of the actual beneficiary. Accordingly, the second judgment concluded that the approach adopted in the first judgment was internationally unprecedented.
Accordingly, the second judgment held that SARS overreached by targeting Absa. Rogers J maintained that SARS could have pursued the entities that actually obtained the tax benefit or defined the arrangement more narrowly. His approach, he noted, preserves SARS’ anti-avoidance powers while ensuring they are exercised within proper legal limits. The second judgment would have upheld Absa’s appeal, reinstated the High Court’s order and awarded costs in its favour.
The Court makes the following order:
The appeal is dismissed with costs, including the costs of two counsel.
The Full judgment here