Case CCT 103/25 & CCT144/25
[2026] ZACC 37
Hearing Date: 05 - 07 May 2026
Judgement Date: 17 September 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.
The Constitutional Court handed down judgment in two applications brought in terms of section 167(4)(e) of the Constitution that sought orders declaring that Parliament and the Provincial Legislatures failed to comply with their constitutional obligations to act reasonably in facilitating public involvement in the passing of the Public Procurement Act 28 of 2024 (Act), and that the Act was adopted in a manner inconsistent with the Constitution and is, therefore, invalid.
These applications, heard together, addressed the nature and scope of Parliament’s constitutional obligation to facilitate public involvement in its law-making process. In CCT 103/25, the Premier of the Western Cape Government (Premier) was the first applicant, and in CCT 144/25, the City of Cape Town (City) was the first applicant. AmaBhungane Centre for Investigative Journalism NPC (amaBhungane) was the second applicant in both cases, and Solidarity was the third applicant in CCT 144/25. In both cases, the first, second and third respondents were the Speaker of the National Assembly (Speaker), the Chairperson of the National Council of Provinces (Chairperson) and the Minister of Finance (Minister), respectively. In CCT 144/25, the fourth respondent was the President of the Republic of South Africa (President), and the fifth to thirteenth respondents were the Speakers of the Provincial Legislatures. The application under case number CCT 103/25 was opposed by Parliament and the application under case number CCT 144/25 was opposed by Parliament and the Speakers of the Eastern Cape, Free State, Mpumalanga, Northern Cape and North West Legislatures.
On 10 May 2023, Cabinet approved the Public Procurement Bill (Bill), which eventually became the Act, for introduction in Parliament. The Act aimed to consolidate multiple legislative regimes across various enactments — no fewer than 34 pieces of legislation — on procurement by state entities into a single regime. The Act sought to address risks of inconsistency and confusion created by the current fragmentation of the procurement regime, and introduced uniform treasury norms and standards, as envisaged in section 217(1) to (3), read with section 216(1) of the Constitution.
Chapter 4 of the Act, which governed preferential procurement, underpinned this litigation. The scheme, intended to be implemented in a staggered manner, aimed to achieve representation of the economically active population by providing those disadvantaged by past unfair discrimination with an entry point into the economy. It also sought to encourage previously advantaged and empowered bidders, who had already established themselves in the market, to partner with the government to achieve its transformational objectives by subcontracting to certain identified groups or by requiring bidders to procure their own goods and services from those groups.
The introduction of the Bill in the National Assembly (NA) began with the gazetting of the notice of its introduction on 22 May 2023 as per rule 276(1)(b) of the Ninth Edition of the Rules of the National Assembly. Because the Bill fell within Chapter 13 of the Constitution and included provisions that may have affected the financial interests of the provincial sphere of government, it was dealt with in accordance with section 76(1) of the Constitution.
On 18 August 2023, the Standing Committee invited stakeholders and interested persons to submit written comments on the Bill before 11 September 2023 and to indicate whether they intended to attend the public hearings. Only those who indicated their intention to attend were permitted to participate in the hearings on 12 and 13 September 2023, which were held virtually. The Bill attracted strong public interest, with approximately 112 stakeholders submitting more than 2 200 lines of commentary. Over two days of public hearings, the Standing Committee received submissions from 31individuals and organisations.
National Treasury prepared its response to the public’s submissions and stakeholder inputs, which it presented to the Standing Committee on 17 November 2023, including a PowerPoint presentation addressing some of the submissions received; a report by National Treasury on public comments; a list of stakeholders; a spreadsheet containing responses to the comments received; and a document consisting entirely of new provisions regulating preferential procurement. The report indicated that it could not consider all the comments received due to time constraints, and a Parliamentary Monitoring Group (PMG) report on the meeting noted that only 20% of the comments were responded to.
At the 17 November 2023 meeting, stakeholders were, for the first time, given an opportunity to comment on new provisions regulating preferential procurement. Most stakeholders raised concerns about National Treasury’s failure to provide a copy of the document containing the new provisions regulating preferential procurement prior to the meeting, the truncated timeframes for comments and National Treasury’s failure to consider all submissions received. After the 17 November 2023 meeting, there was no further public participation process on the Bill in the NA.
After that meeting, the Standing Committee’s Chairperson proposed a special meeting with National Treasury on 24 November 2023 to address outstanding issues, during which National Treasury indicated that it had addressed an additional 16 submissions. At the meeting’s conclusion, the Chairperson indicated that the processing of the Bill would continue four days later, on 28 and 29 November 2023, even though not all comments had been considered.
On 28 and 29 November 2023, the Standing Committee deliberated on the amendments proposed by National Treasury. According to the City, the Standing Committee failed to consider any of the public submissions during these deliberations. Nevertheless, on 1 December 2023, the Standing Committee reconvened to consider a motion of desirability on the second version of the Bill and, after deliberation, adopted it by a majority vote. On 4 December 2023, the Standing Committee adopted its report on the Bill and referred it to the NA for a vote on 6 December 2023. At plenary session, the NA adopted the second version of the Bill and transmitted it to the National Council of Provinces (NCOP) for concurrence.
On 30 January 2024, the NCOP’s Select Committee on Finance (Select Committee) issued its invitation for public participation. The notice informed the public that written submissions were due no later than 22 February 2024. This was the first opportunity for the public to comment on the new provisions governing preferential procurement, aside from the stakeholders who had attended the Standing Committee meeting on 17 November 2023. On 12 February 2024, the City submitted written comments on the second version of the Bill to the Select Committee. On 23 February 2024, the NCOP public participation hearing took place and concluded on the same day. Twelve stakeholders submitted comments on the Bill, and a PMG meeting report highlights concerns raised during public participation.
On 19 March 2024, National Treasury presented its responses to the public’s submissions. The meeting minutes recorded that some members of the Select Committee had concerns about National Treasury’s response to stakeholders’ comments and the adequacy of the NCOP’s public participation process — an issue that persisted in subsequent meetings in April 2024.
On 30 April 2024, the Select Committee convened to consider the provincial’ negotiating mandates and adopted them, with the exception of the report of the Western Cape Province. The Eastern Cape Provincial Legislature’s negotiating mandate indicated that its Portfolio Committee on Finance deliberated and voted to support the Bill on 14 March 2024, after the public participation process was concluded, as public hearings in respect of KwaBhaca (Mount Frere) and Lusikisiki were held on 28 and 29 February 2024, respectively. The negotiating mandate by the Free State Provincial Legislature indicated that a notice was issued on 9 February 2026 containing information about the public hearings to be held between 13 and 27 February 2024.
The Gauteng Provincial Legislature published its notices of public hearings which were to be held on 29 February 2024 on three occasions; first, on its official website and social media on 8 February 2024; second, on 14 February 2024, in the Star newspaper; and third, on 18 February 2024, in the Sunday Times. Despite the Speaker’s denial of the notice of public hearings on the Gauteng Provincial Legislature’s Facebook page on 8 February 2024, there was documentary evidence supporting that assertion. On 2 April 2024, Gauteng’s negotiating mandate,together with the report, was forwarded to the permanent delegate of the NCOP for tabling before the Select Committee.
The KwaZulu-Natal Provincial Legislature gave notice on 6 February 2024 of public hearings which were to be held on 15 and 22 February 2024 and 1 March 2024. It prepared a report that was accompanied by its negotiating and final mandates. The negotiating mandate indicated support for the Bill, subject to various amendments. The report also indicated that the call for public comments on the Bill had been published on the KwaZulu-Natal Provincial Legislature’s website in English and isiZulu.
The Limpopo Provincial Legislature gave notice on 11 March 2024 of public hearings which were to be held on 15 March 2024, but only one hearing was held in the Capricorn District. The Mpumalanga Provincial Legislature gave notice on 14 and 23 February 2024 of public hearings which were to be held on 22 and 29 February 2024 and 1 March 2024. Its report indicated that the delegation representing the Mpumalanga Province in the NCOP was conferred with authority to vote in favour of the Bill.
The Northern Cape Provincial Legislature gave notice on 27 February 2024 of public hearings which were to be held on 4 March 2024. The North West Provincial Legislature gave notice on 4 March 2024 of hearings which were to be held on 6 March 2024. The Western Cape Provincial Legislature gave notice on 1 March 2024 of its public hearing which was scheduled for 4 March 2024. At the time the Select Committee considered the provincial negotiating mandates, the Western Cape Provincial Legislature had not yet presented its negotiating mandate.
On 2 May 2024, the Select Committee deliberated on the proposed amendments to the second version of the Bill. It met again on 7 May 2024 to receive the final provincial final mandates and adopted the third version of the Bill and its report on the Bill. The third version of the Bill was adopted by the NCOP in accordance with these final mandates and subsequently returned to the NA, where it was referred to the Standing Committee. In its report, the Standing Committee stated that it was satisfied with the third version of the Bill. The proposed amendments to the third version of the Bill were incorporated into the fourth version, which was subsequently passed by the NA.
Finally, on 18 July 2024, the President assented to the Bill, and the Act was published in the Government Gazette on 23 July 2024.
The grounds on which the applicants sought to challenge Parliament’s public participation process largely overlapped and could be grouped into six categories: first, the NA’s failure to consult on material amendments; second, the incorrect information pertaining to cost implications; third, the failure to consider all comments received; fourth, the insufficient timeframes given by Parliament and Provincial Legislatures; fifth, the deficiencies in the negotiating and final mandates of the provincial delegations; and lastly, the failure to provide necessary information.
The first issue the applicants alleged is that the NA failed to consult on material amendments of the Bill. The crux of the material challenge lay in Chapter 4. To distinguish between the Chapter 4 that was subject to the initial public participation process and the amended Chapter 4 that formed part of the Act, I have referred to them as the “old” and “new” chapters, respectively.
The applicants claimed that the first version of the Bill, published by the NA for public comment, was materially different from the second version presented to the NA by the Standing Committee on 4 December 2023, as well as from subsequent versions. The second version and subsequent versions of the Bill did not undergo a separate public participation process within the NA. The respondents addressed this contention with several propositions.
First, they argued that the content of the new Chapter 4 “foreshadowed” the old Chapter 4 and that the purpose of the new Chapter 4 was to “unpack and elaborate upon the provisions that had initially been included in clause 17 of the Bill”. Second, they contended that the regulations promulgated in 2017 pursuant to the Preferential Procurement Policy Framework Act of 2000 (2017 PPPFA Regulations) contained concepts that were fundamentally similar to those in the new Chapter 4 and were the product of an extensive research and consultation process. Third, they argued that the procurement scheme envisioned in the new Chapter 4 remained incomplete and dependent on regulations contemplated under section 63 of the Act. The argument was that procurement regulations would have to be promulgated to put the Act, including the new Chapter 4, into operation. Regarding the envisioned regulations, the respondents submitted that, prior to their promulgation, their drafts would have to be published for comment pursuant to section 63(3) of the Act.
The applicants contended that concepts contained in the 2017 PPPFA Regulations were fundamentally different to the ones contained in the new Chapter 4, and that Parliament cannot justify the impact of the amendments by relying on the 2017 public participation process.
The question here then became whether the amendments to Chapter 4 were “material” with reference to: (1) how extensive a change it was from the previous provisions; and (2) the severity of the consequences that the change could have had for members of the public and for the institutions that would have had to comply with the provisions in question. At the outset, it was important to note that counsel for Parliament, at the hearing of this matter, conceded that the change was in fact material.
The second issue was that, in CCT 144/25, the City alleged that the memorandum accompanying the Bill contained factually incorrect information. Specifically, the memorandum misrepresented the Act as having no substantial financial implications.
The third ground was that the applicants in both applications alleged that Parliament did not consider all written comments received during the public participation process. As a result, the applicants submitted that the Standing Committee deliberated on the Bill without conducting a comprehensive review of the comments submitted. Furthermore, they submitted that there was no evidence that the NA itself either became aware of or considered the content of the comments. AmaBhungane made similar submissions regarding the NCOP’s consideration of submissions. The respondents in both matters submitted that Parliament gave due consideration to the comments received. Citing this Court’s judgments in Merafong and Mogale, the respondents submitted that, while Parliament ought to have been responsive to stakeholders’ voices and concerns, it was neither bound by stakeholders’ views nor required to accommodate all demands arising from the public participation process.
The fourth issue raised by both the City and amaBhungane challenged various timeframes provided for in the public participation process as insufficient and unreasonable. The City relied on Mogale for the proposition that Parliament’s Practical Guide for Members of Parliament and Provincial Legislatures (Practical Guide) and the Public Participation Framework for the South African Legislative Sector (Framework) codified the level of public participation that Parliament deems reasonable and was thus binding on it. The Framework stipulated that Parliament ought to have sent invitations at least five weeks before public hearings. The City submitted that neither the NA nor the NCOP complied with this five-week requirement, as both sent invitations only three weeks before the hearings. The City challenged the process of the NCOP and Provincial Legislatures as flawed on the basis that the NCOP’s notice of public participation was insufficient.
The fifth ground challenged the Provincial Legislature’s compliance with sections 3 and 6 of the Mandating Procedures of Provinces Act 52 of 2008.
The sixth and final challenge was advanced only by Solidarity. It contended that the public lacked access to vital information about the historical assessment of the performance of preferential procurement interventions, without which they could not have meaningfully engaged with the Bill.
In a unanimous judgment, this Court held that it is uncontroversial that this Court had exclusive jurisdiction to decide whether Parliament failed to adequately facilitate public participation in its legislative processes. Under section 167(4)(e) of the Constitution, this Court has exclusive jurisdiction to decide whether Parliament or the President had failed to fulfil a constitutional obligation, which the alleged failure to facilitate reasonable public participation in the legislative process was under sections 59(1)(a) and 72(1)(a) of the Constitution. Therefore, this Court had exclusive jurisdiction to hear the grounds of challenge.
Sections 59(1)(a) and 72(1)(a) of the Constitution obliged the NA and the NCOP to “facilitate public involvement in [their] legislative and other processes”. Section 118(1)(a) of the Constitution imposed a similar obligation on the Provincial Legislatures. The requisite standard against which this obligation was measured is trite – reasonableness. Reasonableness in this context meant that members of the public and all interested parties were afforded a reasonable opportunity to know about the issues and to have an adequate say. The opportunity must be one capable of having influenced the decision taken. As stated by this Court in Mogale, important considerations in the assessment of the reasonableness of the process include: what Parliament itself had determined was reasonable, and how it had decided it will facilitate public involvement; the importance of the legislation and its impact on the public; and time constraints on the passage of a particular bill, and the potential expense.
The Act would have been an important piece of legislation designed to have a wide-ranging impact on how the state procures goods and services and to give effect to constitutional imperatives set out in sections 195, 216 and 217 of the Constitution. It sought to remedy the fragmented public procurement system and replaced it with a unified regulatory system, no doubt affecting hundreds of public institutions, parastatals and organs of state. In this case, given the importance of the legislation and its impact on the public, it was crucial that the public be afforded the fullest opportunity to have their voices heard during the legislative process.
The old Chapter 4 outlined the parameters of a preferential procurement framework for implementation by procuring institutions. It functioned as an enabling framework that authorised procuring institutions to implement policies and measures permissively and with discretion. By contrast, the new Chapter 4 provided for a far more prescriptive statutory regime. Instead of a single enabling provision, the new Chapter 4 set out, in great detail, what must be included in the preferential procurement policy. It also introduced a new mechanism, namely mandatory prequalification criteria, that curtailed the discretion of procuring institutions and institutionalised a system in which categories of bidders would be routinely excluded from participation as a matter of law.
The new Chapter 4 also significantly expanded the detail of beneficiary categories. Specific preference targets for military veterans, for example, were new and should have warranted public scrutiny. Plainly, therefore, the respondents’ argument that the preferential procurement provided for in the new Chapter 4 was all “foreshadowed in clause 17” and that the purpose of the revised Chapter 4 was to “unpack and elaborate upon the provisions that had initially been included in clause 17 of the Bill” was untenable. The changes were material and were not merely an additional level of detail added to an existing clause, but the introduction of new mechanisms and categories. As this Court held in SA Iron and Steel, materiality triggers the need for further participation.
These amendments raised complex constitutional, economic and practical considerations concerning competitiveness, fairness, cost-effectiveness and the relationship between equity measures and the broader procurement principles contained in section 217(1) of the Constitution – certainly material enough to have warranted additional public participation in the NA.
Public participation undertaken in relation to delegated regulations promulgated by the Executive in 2017 could not substitute for Parliament’s constitutional obligation to facilitate meaningful public participation in the enactment of an entirely new statutory procurement framework years later. The 2017 PPPFA Regulations operated within the PPPFA’s architecture and remained subordinate to that statutory framework, while the new Chapter 4 of the Act was entrenched directly in primary legislation. The 2017 PPPFA Regulations provided for the point scoring system of section 2 of that Act, whereas the new Chapter 4 established a regime centred in mandatory set-asides, prequalification criteria, subcontracting obligations and local-content requirements. Additionally, by the time the Bill was introduced in the NA, the 2017 PPFA Regulations had been replaced by the 2022 PPPFA Regulations. The 2022 PPPFA Regulations omitted regulations 4, 6, 7, 8 and 9.
It seemed convenient for the respondents to have relied on the 2017 PPPFA Regulations rather than the 2022 PPPFA Regulations currently in force. Furthermore, there were likely to be a number of individuals, businesses and organisations who had no interest in public procurement at the time consultation took place on the 2017 PPPFA Regulations but would have been impacted by the provisions of the new Chapter 4. It was also noteworthy to mention that the 2017 PPPFA Regulations were ultimately declared unlawful.
In sum, the changes to Chapter 4 between the first and second versions of the Bill were material. The NA had an obligation to ensure that the public received an additional opportunity to comment on the amended Chapter 4, which could not be satisfied by reference to the 2017 PPPFA Regulations, nor by relying on public participation that might occur in respect of future regulations. The ineluctable conclusion was that the NA failed in its obligation to facilitate public participation. At the very least, Chapter 4 stood to be invalidated on this basis.
The applicants’ allegation that Parliament failed to properly consider most of the written comments received during the public participation process went to the heart of Parliament’s duty to facilitate meaningful public participation. In Doctors for Life, this Court held that all parties “should feel that they have been given a real opportunity to have their say” and “possibly influence decisions in a meaningful fashion”. Parliament was under no obligation to adopt the public’s views or to accommodate all stakeholders’ demand, but it must give due regard to, or properly consider, a significant number of public submissions. Otherwise, those submissions could not have stood a chance of influencing the legislative process.
At the meeting of 17 November 2023, National Treasury reported to the Standing Committee that it had not responded to all 112 submissions due to “time constraints” and had drafted responses to only 25 submissions. Later, on 24 November 2023, National Treasury acknowledged that, given the volume of comments and time constraints, the reviewing team had not been able to “review all stakeholder comments”. No evidence had been presented to suggest that National Treasury considered any further submissions after this report. That being the case, it was self-evident that this lack of consideration constituted a serious deficiency in the public participation process, and one that prevented the public’s views from reaching lawmakers. As a result, lawmakers could not have been open to being persuaded by such comments.
When considering the material changes, that were likely not prepared overnight, with National Treasury’s timeline for responding to submissions, it became evident that the submissions National Treasury considered at that time, and possibly the ones it responded to earlier, had no effect on the new Chapter 4. It was impossible on the evidence to say that the many comments that National Treasury did not get around to considering were already covered by responses it had given to other comments.
It was also impossible to have said that the Standing Committee or the NA itself considered the comments that National Treasury did not address. While the Standing Committee, by virtue of having the spreadsheets containing the list of stakeholders and their comments, could have theoretically accessed the submissions, there was no evidence suggesting that it either read or discussed the over 1,000 rows of comments to which National Treasury did not respond. Instead, reliance was placed on National Treasury’s presentations and summaries, which largely excluded these comments. National Treasury failed to consider all comments received; no evidence was provided to suggest that the comments were dealt with thematically. The Standing Committee and NA then relied on National Treasury to collate and respond to the submissions leading to a downstream preclusion effect on the written submissions. This was a serious deficiency.
The Court finally turn to the applicants’ challenge to the timeframes set by Parliament and Provincial Legislatures. The City alleged that these timelines were shorter than those stipulated in the Framework and Practical Guide and amaBhungane challenged the reasonableness of the process via several truncated timelines. The weight accorded by this Court to the Framework and Practical Guide in Mogale was instructive in the matter. Parliament need not always adhere to these instruments because the reasonableness of a public participation process “depend[s] on the circumstances of each case”. On the other hand, allowing arbitrary and unexplained deviations from these instruments to pass judicial scrutiny would diminish the import of the standards that the legislative sector has set for itself. Therefore, the Court concluded that while the Framework and Practical Guide were not strictly binding on Parliament, they elucidated what Parliament considers reasonable practice in the public participation process, and deviations from it may constitute prima facie evidence that calls for Parliament to explain its choices in case-specific circumstances.
Here, it was common cause that Parliament and the Provincial Legislatures gave notice periods shorter than those set out in the Framework and Practical Guide and offered no explanation for these shortcomings. Instead, it submitted that it was the City that must have substantiated its view that the notice periods were unreasonable. Once an applicant shows that Parliament did not observe the standards set forth in the Framework and Practical Guide, the burden shifts to Parliament to explain any such deviations. While public participation is necessarily an “inexact concept”, and these discrepancies may be acceptable, or even necessary, under specific circumstances, the lack of explanation casted doubt on whether the public participation process adopted by Parliament and the Provincial Legislature was reasonable.
AmaBhungane’s challenge concerned a list of alleged truncated timeframes provided to stakeholders, including the approximately three and a half weeks that stakeholders had for written comment; the short interval between the close of submission of written comments and the first public hearings; the four hours that stakeholders had on 17 November 2023 between receiving copies of the new Chapter 4 and the start of their meeting with the Standing Committee; and the two minutes that each stakeholder had to present at that meeting. Given the importance of the Bill and the nature and extent of the amendments to Chapter 4, it did not seem to be reasonable to afford stakeholders only four hours to consider the amendments and two minutes each to present their concerns. That, in our view, would have affected their ability to engage meaningfully with the Bill.
Altogether, on assessing the complaints raised by amaBhungane, along with the deviations from the Framework and Practical Guide and the lack of a satisfactory explanation for the truncated timeline for the public participation process, the Court could find no justification for the truncated timeframe. Together with other deficiencies raised by the applicants, the Court concluded that Parliament failed in its constitutional obligations to facilitate a reasonable public participation process. Given these findings, it was unnecessary to consider the merits of the remaining grounds raised by the applicants.
In terms of section 172(1)(a) of the Constitution, this Court was obliged to declare law or conduct inconsistent with the Constitution invalid. Given the finding that Parliament failed to fulfil its constitutional obligations in terms of sections 59(1)(a) and 72(1)(a) of the Constitution in passing the Act, a declaration of invalidity followed. The Court thus concluded that the Act, in its entirety, should be declared unconstitutional and invalid.
The applicants in both applications were successful, and there was no reason why costs should not follow the result. In the Court’s view, the employment of two counsel was justified.
In the result, the following order was made:
- It was declared that Parliament failed to comply with its constitutional obligation to facilitate public involvement in accordance with sections 59(1)(a) and 72(1)(a) of the Constitution, before passing the Public Procurement Act 28 of 2024 (Act).
- It was declared that the Act was adopted in a manner inconsistent with the Constitution and was therefore invalid.
- The first and second respondents were jointly and severally liable to pay the costs of the first and second applicants in CCT 103/25, including the costs of two counsel.
- The first, second, fifth, sixth, tenth, eleventh and twelfth respondents were jointly and severally liable to pay the costs of the first, second and third applicants in CCT 144/25, including the costs of two counsel.
The Full judgment here
Case CCT 116/25
[2026] ZACC 35
Hearing Date: 24 February 2026
Judgement Date: 11 September 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, 11 September 2026, the Constitutional Court handed down judgment in an application for the confirmation of an order of constitutional invalidity granted by the High Court, KwaZulu- Natal Division, Pietermaritzburg (High Court). The High Court declared sections 21(4), 22, 23 and 24(1) of the KwaZulu-Natal Traditional Leadership and Governance Act (KZN Governance Act) (impugned provisions) inconsistent with the Constitution and, therefore, invalid.
The dispute originates in a petition lodged in 2015 with the third respondent, the Member of the Executive Council for the Provincial Department of Cooperative Governance and Traditional Affairs, KwaZulu-Natal (MEC), by members of the eMathulini Traditional Community in KwaZulu-Natal. The petition alleged extensive misconduct on the part of iNkosi Bhekizizwe Nivard Luthuli (iNkosi), which included the imposition of extortionate levies, the confiscation of land and political favouritism in the allocation of community services. As a result of the petition, the MEC advised iNkosi to cease the collection of levies. The MEC engaged a firm of attorneys to interview members of the community together with the applicants (uMndeni weNkosi and iNkosi) regarding the allegations and to submit a report on that process. After unsuccessful attempts to interview iNkosi and the eMathulini Traditional Council, the attorneys expressed doubt that iNkosi had authority to impose and collect levies from members of the community.
The interviews resulted in an inquiry constituted under section 23 of the KZN Governance Act. Pursuant to that inquiry, iNkosi was found guilty of, among other things, having acted in breach of the Code of Conduct promulgated under the KZN Governance Act, by conducting himself disgracefully and failing to act in the best interests of the community. The ninth respondent, being the presiding officer over the inquiry, recommended that the first respondent, the Provincial Executive Council, KwaZulu Natal (PEC), withdraw the recognition of iNkosi as a traditional leader as provided in section 23(11)(d) of the KZN Governance Act (recommendation). The PEC adopted the recommendation (withdrawal decision) and, acting in terms of that decision, the second respondent, the Premier of KwaZulu-Natal (Premier), withdrew the recognition of iNkosi.
Aggrieved by the withdrawal decision, iNkosi brought an application in the High Court seeking an order in two parts. Under Part A, he sought a rule nisi on an urgent basis, suspending the withdrawal of his recognition pending the final determination of Part B of his application – a review of the withdrawal decision. Inter alia, iNkosi asserted that the presiding officer did not afford him an opportunity to make representations prior to adopting the withdrawal recommendation. The High Court granted the rule nisi, finding that the failure to provide iNkosi with an opportunity to make representations prior to adopting the withdrawal recommendation justified the provisional suspension of the withdrawal of recognition pending the review by iNkosi.
For a long time after the granting of the rule nisi, iNkosi did not prosecute the review application. Ultimately, the government respondents (PEC, Premier and MEC) initiated a self-review in the High Court seeking an order setting aside the withdrawal decision and remitting the matter to the PEC for redetermination, with iNkosi being afforded an opportunity to make representations regarding the presiding officer’s recommendation and the appropriate sanction. In response to the self-review, uMndeni and iNkosi launched a counter-application challenging the constitutionality of the impugned provisions, the inquiry conducted in terms of those provisions and the sanction imposed pursuant to the inquiry, on the basis that they excluded uMndeni from participating and presiding over the inquiry. INkosi also launched a conditional counter- application seeking an order that, in the event of the constitutional challenge being unsuccessful, the “decision” of the presiding officer be reviewed and be set aside, that the section 23 inquiry commence afresh, and that in the section 23 inquiry, the presiding officer be directed to “call for and receive the evidence of uMndeni and him”.
The High Court upheld the applicants’ arguments. It found that, in failing to defer to uMndeni in relation to presiding over the section 23 inquiry, and providing no mechanism for the family to participate in that inquiry, the impugned provisions are unconstitutional. The High Court further held that the impugned provisions are unconstitutional for failing to afford iNkosi the opportunity to make representations before the PEC adopted the inquiry’s recommendation. It found that the impugned sections infringed unreasonably upon the rights of uMndeni under sections 30, 31, 211 and 212 of the Constitution by conferring on the MEC the authority to summon iNkosi. It then dismissed the self-review on the basis that “if the impugned sections are unconstitutional and invalid, the finding of misconduct must equally be set aside”. It confirmed the Part A rule nisi that was granted in 2020, and pronounced that there would be no order in respect of the conditional counter-application. The High Court thus struck down the impugned provisions and suspended the operation of the order pending confirmation of the order of invalidity by this Court.
In this Court, the salient issues were identified as follows: (i) whether condonation should be granted for the late lodgement of this application uMndeni and iNkosi; (ii) whether the order of constitutional invalidity should be confirmed; and, if necessary, (iii) the appropriate remedy.
On condonation, this Court concluded that even though this application was filed over a month of time, it was in the interest of justice to grant condonation, and the respondents will suffer no prejudice should condonation be granted. Condonation was thus granted.
On whether the order of constitutional invalidity should be confirmed, this Court cited section 2 of the Constitution which provides that all law and all exercises of public power must be consistent with the Constitution, and sections 30 and 31 which entrench, in broad terms, the right of individuals and communities to use their languages and practise their culture. In relation to the applicants’ argument that uMndeni enjoys under section 9 of the TKLA, an exclusive customary right to adjudicate and decide the outcome of the section 23 inquiry, and to impose a sanction in enquiries relating to allegations of misconduct against a traditional leader, the Court held that reliance by uMndeni and iNkosi on section 9 of the Khoisan Act is misplaced because under section 9, the final decision to withdraw the recognition of a king or queen or a traditional leader vests in the President or relevant Premier, just as such authority vests in the Premier under the KZN Governance Act. The Court reaffirmed that, in a constitutional democracy such as ours, this interpretation safeguards traditional communities, which are led by mostly unelected leaders through the institution of traditional leadership.
The Court went further to state that uMndeni’s right to remove iNkosi under section 21(3) read with section 23 of the KZN Governance Act when given its proper constitutional expression, it is not limited by the impugned provisions. The Court concluded that uMndeni weNkosi is not an independent or impartial body within the traditional community context. It is defined in the KZN Governance Act as “the immediate relatives of an iNkosi, whereas the inquiry in section 23 is designed to provide an impartial forum to determine disputes relating to the traditional leader. UMndeni therefore, does not meet the prerequisites for a constitutionally compliant arbiter in a dispute resolution forum. The Court clarified that, the conclusion that uMndeni does not have a right to adjudicate or withdraw recognition of a traditional leader pursuant to a section 23 inquiry does not mean that it has no right or interest in the section 23 inquiry. The role of uMndeni as a custodian of customary law may be invaluable in appropriately resolving a dispute relating to a traditional leader. In the context of the KZN Governance Act, uMndeni’s participation may be necessary when, inter alia, an inquiry arises as a result of misconduct contemplated under section 21(1)(d) regarding “a transgression of a customary rule or principle that warrants removal”. The Court concluded that, if the contentions advanced by uMndeni and iNkosi were proved – that they were denied participation in the inquiry, that may be an infringement of their right to procedurally fair administrative action under section 33 of the Constitution.
With regard to the challenge to sections 22 and 24(1), the Court held that these are abstract challenges, and the applicants have not demonstrated that it in the public interest to consider them.
As a result, on remedy, the Court, did not confirm the High Court’s order of unconstitutionality. Second, the Court found that sections 21(4) and 23 are capable of a constitutionally- compliant interpretation and implementation. The counter-application was therefore dismissed, and iNkosi was ordered to approach the High Court within one month from the date of the order to have his conditional counter-application set down for hearing.
The Full judgment here
Case CCT 212/24
[2026] ZACC 36
Judgement Date: 11 September 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, the Constitutional Court handed down judgment in an application for leave to appeal against the judgment and order of the High Court of South Africa, North West Division, Mahikeng (High Court), which ordered the final sequestration of the Mokasule Investment Trust (Trust).
On 5 December 2019, the respondents were appointed as trustees of the insolvent estate of Mr TP Mokasule (the insolvent’s trustees), an erstwhile trustee of the Trust, alongside the applicants. The insolvent’s trustees claimed that the insolvent was a creditor of the Trust in the amount of R20 388 840.73. This was alleged to be reflected in the “audited” financial statements of the Trust. The insolvent’s trustees alleged that the insolvent acquired assets in the name of the Trust by fraudulently purporting to render services to the Klerksdorp Municipality (Municipality) as a meter reader. They further alleged that the insolvent had used the money stolen from the Municipality to acquire immovable property in the name of the Trust and that the application to sequestrate the Trust was necessary for the recovery of the stolen money.
On 18 April 2019, the insolvent’s trustees were granted a provisional sequestration order of the Trust and a return date for the rule nisi was issued. Overall, the case advanced by the insolvent’s trustees for the final sequestration of the Trust was that: (a) all the funds utilised to acquire the immovable properties originated from the theft perpetrated by the insolvent; (b) the Trust had no independent income, as all the funds utilised to acquire the assets were either advanced by the insolvent from the stolen funds or channelled to the Trust directly by the insolvent from ill-gotten gains; and (c) the Trust could not be deemed to be solvent as all funds in its name were to be reimbursed to the Municipality, being the “relevant creditor”.
The insolvent’s trustees averred in their founding affidavit that the Trust had no source of income by which it could possibly have acquired the immovable properties, as at all material times since its registration in 2010, the Trust was not a trading entity and generated no income whatsoever. They alleged that the Trust’s “audited” financial statements ending February 2015 revealed that the insolvent had loaned an amount of R20 388 840.73 to the Trust.
In contrast, the applicants denied any theft of money from the Municipality by the insolvent. They branded the application as a gross abuse of court process. They further submitted that the Trust had assets that exceeded its liabilities; that the Trust assets could easily pay the insolvent’s trustees’ proven debts, if any, yet no such demand had been made; and that the insolvent’s trustees had launched an application to sequestrate the Trust so as to maliciously take control of the Trust’s assets for their own gain. They denied that the insolvent had ever done any meter reading as a form of business. Importantly, they contended that the insolvent’s trustees had not qualified the solvency and liquidity test that they relied on to sequestrate the Trust.
The High Court outlined the legal principles pertaining to applications for the sequestration of debtors. It held that the onus of proving insolvency was on the insolvent’s trustees and that should they fail to do so, they were not entitled to an order for sequestration. The Court proceeded to find that the Trust had committed the following acts of insolvency: (a) disposing of immovable property, in that the insolvent had purchased the properties in the name of the Trust; (b) acquiring property without repaying the loan made to it by the insolvent; and (c) attempting to alienate the property with the intent to prejudice one creditor above another. The Court held that the insolvent’s trustees had made out a case for the confirmation of the rule nisi and granted an order for the final sequestration of the Trust with costs.
On 8 January 2024, the High Court dismissed an application for leave to appeal with costs on the basis that there were no reasonable prospects that another court may come to a different conclusion. The applicants petitioned the Supreme Court of Appeal for leave to appeal but their application was dismissed with costs. Subsequently, they applied to the President of that Court for reconsideration of their application for leave to appeal in terms of section 17(2)(f) of the Superior Courts Act. That application was also dismissed with costs.
In this Court, the applicants requested condonation of their late filing of their application for leave to appeal. Although the application is drafted in a confusing way that is exacerbated by manifest date errors, the applicants submitted that the delay was not due to the fault of their own or their legal representatives. Importantly, they submitted that their application has good prospects of success and that the respondents will suffer no prejudice if condonation is granted. The respondents did not oppose condonation in their answering affidavit. However, they opposed condonation in written submissions. They averred that the applicants failed to provide an explanation for the entire period of delay and that the interests of justice do not favour the granting of condonation.
The applicants also sought leave to file a replying affidavit. They averred that the replying affidavit is extremely important and directly addresses the incorrect submissions set out by the respondents in their answering affidavit in relation to the nature of the dispute between the parties. They also deemed it necessary to respond to what they submitted to be incorrect and inaccurate submissions by the respondents relating to allegations of the commission of crimes.
The applicants submitted that this Court’s general jurisdiction is engaged. They submitted that the High Court committed a clear error of law and misapplication of the applicable test for insolvency in sequestration applications. This was alleged to be as a result of the High Court failing to apply the two stages that must be followed when a court is called upon to sequestrate a debtor’s estate. They therefore submitted that the interests of justice require the intervention of this Court.
On the merits, the applicants’ main contentions were that the findings of the High Court were not supported by evidence, and that it failed to apply principles applicable in sequestration matters. The applicants advanced a number of submissions in this regard, particularly: that the respondents failed to make out a proper case before the High Court; that the High Court’s judgment failed to account for the respondents’ failure to establish a debt to sustain the claim for sequestration; that the High Court failed to appreciate the fact that the assets of the Trust far exceeded any liabilities that could be attributed to it; and that the High Court made an order on the basis of acts of insolvency without the respondents having alleged or proved any act of insolvency in their founding affidavit.
The respondents submitted that the applicants have failed to establish that this Court’s jurisdiction is engaged. They contended that the finding of factual and technical insolvency in terms of section 8 of the Insolvency Act (Act) does not raise a constitutional issue, nor does it raise an arguable point of law of general public importance that ought to be heard by this Court. They submitted that the finding was purely a question of fact, which the applicants were unable to surmount.
On the merits, the respondents submitted that the applicants have failed to indicate with specificity which aspects of sections 8, 9 and 12 of the Act were not complied with. They further submitted that the debt was established through audited financial statements from the insolvent, which fact was accepted by the High Court and the Supreme Court of Appeal. They further contended that there is nothing wrong with the High Court’s interpretation of the provisions of the Act and that they made out a proper case for the sequestration of the Trust.
In a unanimous judgment penned by Mlambo DCJ (Dambuza J, Kollapen J, Majiedt J, Mathopo J, Mhlantla J, Nuku AJ, Opperman AJ, Rogers J, Savage J and Tshiqi J concurring), this Court held that condonation must be granted as the delay of four days was minimal and the application for the delay was adequate. Moreover, this Court held that the application to file a replying affidavit must be refused as the applicants failed to provide exceptional circumstances justifying the granting of the application.
This Court took the view that the applicants’ criticism of the High Court’s judgment was well-founded for the reasons raised by the applicants. The High Court ignored applicable and established principles regarding the assessment and determination of the insolvency of debtors. This was quintessentially a matter of general public importance warranting the attention of this Court. As submitted by the applicants, the errors in the High Court judgment were pervasive, especially in its failure to decide the issues with which it was confronted, based on the evidence before it. In a nutshell, this triggered the jurisdiction of this Court in that the applicants did not enjoy a fair hearing as guaranteed by section 34 of the Constitution and there was clearly a failure of justice. This failure invoked this Court’s constitutional jurisdiction.
This Court held that it was in the interests of justice to grant leave to appeal. This was based on the fact that the applicants have demonstrated that the High Court’s judgment was flawed. The reading of the High Court’s judgment led to an ineluctable conclusion that the High Court failed to appreciate the facts and issues before it.
This Court emphasised that at this stage, the application was fact-laden and required a proper consideration and assessment of the facts. This Court has stated that it does not involve itself in factual controversies. That was for the lower courts. However, since the High Court woefully failed to assess and determine the matter on its facts, it was crucial that this Court demonstrated how the High Court failed to comply with the duty of proper consideration. The Court reiterated that it will not be making a pronouncement on the merits.
The overarching premise of the High Court’s finding of insolvency of the Trust was with regard to the alleged criminal conduct of the insolvent, and not the Trust. The High Court focused on how the properties of the Trust were acquired, which ties back to the allegation that the Trust acquired all of its assets utilising stolen money. How the properties were obtained was of no consequence in a sequestration application. In a sequestration application, what was important was whether the subject of the application was factually insolvent. In this case in particular, what was important was whether the Trust was factually insolvent, as that was the case advanced by the insolvent’s trustees in the High Court. The debt itself was denied and, importantly, no acts of insolvency were relied upon in the pleadings. The High Court relied on allegations of criminal conduct by the insolvent, allegations which have not been proven in criminal proceedings and were clearly hearsay. The High Court did not explain how and why it found these allegations of criminal conduct to be admissible and relevant in a sequestration application.
The High Court held that the Trust committed an act of insolvency in attempting to alienate the property with the intent to prejudice one creditor above another. However, this was not pleaded. Even the High Court’s judgment disclosed no such facts. No such property was identified. Nothing in the judgment disclosed how the High Court came to this conclusion. The path of reasoning was not disclosed.
The High Court further found that the Trust committed an act of insolvency by disposing of immovable property, in that the insolvent purchased the properties in the name of the Trust. This Court found it difficult to see how this qualified as an act of insolvency by the Trust, even if it was pleaded as such, which it was not. This finding by the High Court demonstrated a lack of appreciation not only of the facts before it, but also of the applicable law.
The High Court further found, despite the absence of such a pleaded case, that the Trust had committed an act of insolvency by having property but not refunding the loan to the insolvent. The loan was disputed, and there was no evidence before the High Court of a demand for its repayment. The High Court relied on a disputed forensic report, but it did not explain how it dealt with the applicants’ rejection of the veracity of the forensic report.
Overall, the above demonstrated that the High Court failed in its duty of proper consideration. Consequently, the order of final sequestration of the Trust must be set aside. Therefore, this Court granted leave to appeal. This Court upheld the appeal. This Court set aside the orders of the Supreme Court of Appeal in the application for leave to appeal and reconsideration. This Court also set aside the order of the High Court of South Africa, North-West Division, Mahikeng.
This Court held that the application heard under case number M282/2020 seeking an order for the final sequestration of the Mokasule Investment Trust with Registration Number IT143/10, is remitted to the High Court, to be heard by a different judge. This Court ordered the respondents to pay the applicants’ costs in this Court. This Court also ordered the respondents to pay the applicants’ costs in the application for leave to appeal in the Supreme Court of Appeal. This Court further ordered, each party to pay their own wasted costs in respect of the abortive hearing of the matter that resulted in the High Court, handing down judgment on 15 September 2022.
The Full judgment here