Case CCT281/23
[2026] ZACC 32
Hearing Date: 05 February 2026
Judgement Date: 26 July 2026
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On 27 July 2026, the Constitutional Court handed down judgment in an application for leave to appeal a decision of the High Court of South Africa, Circuit Local Division for the Vereeniging Circuit District (High Court)..
In 2009, the High Court convicted the applicant, Mr Goodman Tshabangu, of one count of murder, two counts of robbery with aggravating circumstances, one count of unlawful possession of a firearm and one count of unlawful possession of ammunition. All these counts arose out of an armed robbery that took place on 28 April 2006. Thirteen days after the robbery, the applicant was arrested in connection with a separate matter. Upon arrest, the applicant was found with a firearm and ammunition.
At trial, the prosecution sought to establish that the firearm found in possession of the applicant was the same firearm used in the armed robbery. It produced a ballistics report that matched a firearm with the bullet used in the armed robbery. It also called two witnesses: the officer who arrested the applicant and the officer who took a firearm for ballistics testing. From there, the prosecution sought the inferences that the applicant was in possession of the firearm at the time of the armed robbery and that, therefore, he was guilty of the aforesaid charges.
At the close of the prosecution and defence cases, the trial Judge found that she had no evidence linking the applicant to the murder and robbery charges. This was, in large part, due to the discrepancy between the evidence of the two officers. While the arresting officer described the calibre of the firearm as 7.65-millimetre, the other officer described it as 9-millimetre. The trial Judge remarked that she did not believe that the prosecution had proven that the firearm found in the possession of the applicant was necessarily the one sent for ballistics testing, and that there was no other admissible evidence implicating the applicant. With respect to the unlawful possession charges, the applicant’s counsel raised the possibility that the applicant had already been convicted of them.
Thereafter, one of the applicant’s co-accused presented his closing argument. In it, he alleged that documents related to the firearm had been tampered with. The trial Judge acknowledged that this address would not form part of the record. At the end of it, the trial Judge also expressed her discomfort about what she considered as possibly a great deal of prosecutorial misconduct. She decided to investigate if there had been an attempt to wrongly procure a conviction or falsify evidence. Exercising her powers under sections 167 and 186 of the Criminal Procedure Act, the trial Judge opted to call or recall several witnesses, including the two officers already mentioned and a witness about the possible prior conviction of the unlawful possession charges.
Of the witnesses so called, only the two officers testified. The arresting officer stated that the firearm’s calibre was indeed 9-millimetre and that he had previously been mistaken because the bullet found in its magazine was a 7.65-millimetre one. The other officer explained that he was initially uncertain about the firearm’s calibre as he is not a firearm expert. After consultation, however, he ascertained it as 9-millimetre because of a trademark on the firearm. Following these testimonies, the trial Judge stated that she was not taking the view that there were two firearms and that she was not concerned about the unavailability of the other witnesses.
In her judgment, the trial Judge recorded her initial concern regarding the firearm’s identity. She, however, found that it was satisfactorily dealt with and that the prosecution had established that the applicant was arrested while in possession of the weapon used in the armed robbery. Applying inferential reasoning, the trial Judge further found that the applicant was therefore in possession of the same firearm at the time of the armed robbery. Finally, applying the doctrines of common purpose and dolus eventualis, the trial Judge held that the applicant was a perpetrator of the armed robbery and convicted him on all five counts.
The High Court imposed an effective sentence of 22 years’ imprisonment. The applicant sought leave to appeal to the Supreme Court of Appeal, which was refused in 2017. The applicant filed the present application in March 2023, followed by an application for the condonation of its late filing in October 2023. He alleged, among others, that the High Court improperly exercised its powers under sections 167 and 186 by calling witnesses in circumstances where no evidence linked him to the offences referred to in the indictment.
In a unanimous judgment penned by Nuku AJ (Mlambo DCJ, Dambuza J, Kollapen J, Mathopo J, Mhlantla J, Nuku AJ, Opperman AJ, Savage J and Tshiqi J concurring), the Constitutional Court first found that it is in the interests of justice to grant condonation. While the applicant, by filing the application in the Court roughly six years out of time, had incurred a significant delay, he proffered some explanations, including financial hardships, unfortunate familial circumstances, a lack of legal representation and a lack of access to outside resources due to his ongoing incarceration. Although these explanations did not adequately explain the entirety of the lengthy delay, the respondent did not complain of any discrete prejudice. Further, the issues raised in the appeal touched on fundamental rights in the Bill of Rights and the fundamental tenet of fairness in the administration of justice. The appeal also enjoyed good prospects of success. Condonation was, therefore, granted.
The Court next held that its constitutional jurisdiction was engaged. Regarding the exercise of discretionary powers under sections 167 and 186 of the Criminal Procedure Act, the Court found that the role of a trial judge in a criminal trial is not simply one of an umpire, but an administrator of justice, who has not only to direct and control the proceedings but also to see that justice is done. Sections 167 and 186 facilitate this inquisitorial role. On the other hand, interferences by a judge with what is normally an adversarial legal system carry the risk of compromising the evenhandedness and impartiality of criminal proceedings.
The exercise of powers under sections 167 and 186, thus, treads the tenuous line between seeing justice done and creating the impression that a court is overstepping in support of the prosecution’s case. For this reason, a court has a heightened obligation to ensure impartiality and fairness both when calling or subpoenaing witnesses and during the questioning of such witnesses. Accordingly, the question of whether a court commits an irregularity in the manner in which it exercises these powers is closely connected to the fairness of an applicant’s trial. In the present appeal, the irregularities raised by the applicant point to the High Court exercising its powers to fill gaps in the prosecution’s case in circumstances where, at the close of the prosecution’s case, no other evidence had been led against him. These were serious irregularities that, if sustained, would undermine the basic notions of trial fairness and justice.
Additionally, the High Court’s failure to exercise its sections 167 and 186 powers to clarify the applicant’s possible prior conviction in respect of the unlawful possession charges also touched on the High Court’s perceived impartiality. These issues were sufficiently serious to implicate the applicant’s right to a fair trial.
Regarding leave to appeal, the Court found that the applicant’s appeal enjoyed good prospects of success. The alleged violation of his fair trial rights led to the applicant’s convictions and sentences and provided the basis for his past and continued incarceration. It was in the interests of justice to determine whether the applicant’s trial was unfair and his convictions unsound.
On the merits, the Court reiterated that the right to a fair trial encapsulates a substantive, rather than a formalistic, notion of fairness. While sections 167 and 186, viewed together, essentially allow a court to call or recall and examine witnesses, the exercise of these powers must be viewed against the presumption of innocence and the prosecution’s burden to prove an accused’s guilt beyond reasonable doubt. Specifically, the Court found that the judicious exercise of these powers entails the following, non-exhaustive list of principles:
- First, the purpose of a court’s examination should be related to the trial;
- second, the court should not cross-examine the witness;
- third, the court must remain impartial, and its impartiality must be evident from the nature and scope of the examination;
- fourth, the presiding officer must not enter the arena of the prosecution;
- fifth, if it is necessary for justice to be done, the court will come to the aid of the accused who is represented by inexperienced counsel; and
- sixth, a judicial officer must not only be impartial but must be seen to be impartial.
In light of these principles, the Court observed several troublesome aspects of the High Court’s calling and subsequent questioning of witnesses. First, the trial Judge’s decision to call the witnesses stemmed largely from her concern of possible prosecutorial misconduct. The adjudication of the case was, thus, not the central motivation. Even though a High Court has wide discretion under sections 167 and 186, it cannot be regarded as exercising that discretion judiciously when it calls witnesses to primarily address matters unconnected to the determination of the guilt or otherwise of an accused.
Second, the trial Judge’s decision to call the witnesses was not based on admissible evidence but on oral submissions made by one of the applicant’s co-accused. The Court found that the trial Judge’s reliance on information that did not constitute evidence against the applicant amounted to an irregularity. Third, the Court found that the trial Judge’s did not maintain the requisite neutrality when questioning the two officers on recall. The trial Judge asked leading questions, which appeared to have caused the witnesses to change their testimonies. The trial Judge then placed reliance on the changed testimonies in convicting the applicant. In doing so, the trial Judge gave the impression that she was no longer acting with the requisite impartiality but was, in fact, coming to the aid of the prosecution.
Finally, the trial Judge did not insist on calling witnesses related to the alleged prior conviction of the applicant, despite the expressed concern that the applicant might have been previously convicted on identical unlawful possession charges. The Court reasoned that such an omission engendered the distinct impression that the trial Judge called those witnesses it deemed expedient to establish the applicant’s guilt, but did not consider it necessary to call witnesses who could potentially clarify whether the applicant had been convicted of unlawful possession of a firearm and ammunition on 11 May 2013. The trial Judge therefore failed to maintain neutrality and impartiality in the exercise of her discretionary powers.
In conclusion, the Court held that the High Court’s exercise of its powers under sections 167 and 186 was irregular and violated the applicant’s right to a fair trial. Consequently, the evidence adduced therefrom fell to be disregarded, and the charges against the applicant were reassessed based on the admissible evidence as it stood at the close of the prosecution and defence cases. At that point, no evidence linked the applicant to the crimes for which he was charged, and he should have been acquitted.
The Constitutional Court made the following orders. Leave to appeal was granted. The appeal succeeded. The order of the High Court of South Africa, Circuit Local Division for the Vereeniging Circuit District, insofar as it related to the applicant, was set aside and replaced with the following: “Accused 3 is found not guilty and acquitted on all counts.” If the applicant was not serving any sentences other than those that are the subject of this application, the Head of the Groenpunt Medium Correctional Centre, Free State, or the Head of the relevant facility where the applicant was incarcerated, was directed to release him from prison immediately.
The Full judgment here
Case CCT34/26
[2026] ZACC 31
Hearing Date: 28 May 2026
Judgement Date: 07 July 2026
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Tuesday, 7 July 2026, the Constitutional Court handed down judgment in an application for leave to appeal directly against three orders of the High Court of South Africa, Eastern Circuit Local Division, Thembalethu (High Court), and leave to cross-appeal directly against part of an order of the same Court. The applicant is Thabang Motjamela, a self-represented litigant who, in 2018, was employed temporarily under the Expanded Public Works Programme (EPWP) to conduct road maintenance for the George Local Municipality (Local Municipality). The respondent is the Local Municipality.
Upon the expiry of his EPWP contracts, Mr Motjamela pursued extensive legal proceedings before the South African Local Government Bargaining Council, the Commission for Conciliation, Mediation and Arbitration, the High Court, the Labour Court, the Labour Appeal Court, and the Constitutional Court against the Local Municipality and the Garden Route District Municipality, seeking either to be hired on a permanent basis or given a settlement. All of these efforts were unsuccessful.
Both the District Municipality and the Local Municipality sought to have Mr Motjamela declared a vexatious litigant and restrained from instituting further proceedings against them. The District Municipality was unsuccessful. However, the Local Municipality succeeded in its application, and the High Court declared Mr Motjamela a vexatious litigant and barred him from instituting legal proceedings against any party in any parallel or inferior court without leave of that court (vexatious litigant order). The applicant subsequently sought leave to appeal the judgment, and sought the recusal of the presiding Judge. The High Court suspended the applications for leave to appeal and recusal, declaring that Mr Motjamela appeared, by reason of mental illness or intellectual disability, to be unable to understand the proceeding. It issued an order requiring Mr Motjamela to submit himself for an assessment of his mental health within 10 days, and to present the resulting report to the Court in order for his matters to proceed. When Mr Motjamela failed to attend the mental health assessment, the High Court dismissed the applications for leave to appeal and recusal and issued an order barring Mr Motjamela from instituting any further proceedings before it unless accompanied by a report on his mental health (mental health assessment order). Mr Motjamela attempted to appeal the judgments and orders to the Supreme Court of Appeal, but his application was not processed due to non-compliance with court procedure.
In the Constitutional Court, Mr Motjamela argued that the vexatious litigant order and mental health assessment order, coupled with the Supreme Court of Appeal’s refusal to process his emailed application for leave to appeal, violated his right to access the courts and left direct leave to appeal to this Court as his only avenue for obtaining justice. On the vexatious litigant order, he argued that the order is overbroad, as it prevents him from instituting legal proceedings against any party in any parallel or inferior court without the leave of that court. In relation to the mental health assessment order, Mr Motjamela argued that the Local Municipality did not seek the order, and no evidence was placed before the High Court to support the order. He argued that the order violated his rights to dignity, freedom and security of person, and privacy under sections 10, 12, and 14 of the Constitution, respectively.
The Local Municipality opposed the application on the basis that it raised no genuine constitutional issue engaging this Court’s jurisdiction, and that this was merely a further example of Mr Motjamela’s vexatious litigation. It argued that vexatious litigant orders writ large are constitutionally compliant, and the order of the High Court was not overbroad in the circumstances. It further argued that Mr Motjamela’s refusal to file his leave to appeal application in person or via courier with the Supreme Court of Appeal did not constitute an exceptional circumstance warranting leave to appeal directly to this Court. Regarding the mental health assessment order, it argued that the High Court appropriately exercised its discretion under section 173 of the Constitution. It also sought conditional leave to cross-appeal directly to this Court to limit the scope of the vexatious litigant order if this Court found that its jurisdiction was engaged.
On 28 May 2026, this Court issued a partial order declaring the High Court’s interim and final mental health assessment orders unconstitutional and setting them aside. That order stated that further orders and reasons would follow by way of a short judgment.
In that short judgment, this Court found that the vexatious litigant order and mental health assessment order, coupled with the refusal of the Supreme Court of Appeal to process Mr Motjamela’s application for leave to appeal, blocked Mr Motjamela’s access to the courts. Further, the mental health assessment order infringed on Mr Motjamela’s rights under sections 10, 12 and 14 of the Constitution. The matter thus engaged this Court’s jurisdiction and leave to appeal directly was warranted. The Local Municipality’s conditional leave to cross-appeal was also granted.
On the merits, this Court found that the vexatious litigant order was overbroad. An order of such scope was not sought by the Local Municipality, and evidence was not placed before the High Court that Mr Motjamela had litigated in an abusive or vexatious manner in other matters. The order thus fell to be set aside and replaced with an order preventing further litigation by Mr Motjamela relating to the EPWP contracts.
Regarding the interim and final mental health assessment orders, this Court found that the High Court ignored established processes for addressing concerns about a litigant’s legal capacity in civil proceedings. Instead, it based its findings and issued the orders solely on the presiding Judge’s observations of Mr Motjamela from the bench, without the orders being sought and without any evidence being placed before the Court.
This Court found that an established process exists under rule 57 of the Uniform Rules of Court for the appointment of a curator ad litem (litigation guardian) to assist the court and an applicant who appears to be unable to litigate on their own behalf due to mental illness or intellectual disability. This affords the court the evidence it needs to properly assess the litigant’s situation while preserving the litigant’s dignity and privacy. The interim order and final order compelling Mr Motjamela to obtain a mental health assessment as a precondition to pursuing further litigation thus fell to be set aside and were disposed of by way of an order of this Court issued on 28 May 2026.
This Court noted the extensive litigation history between the parties, and that Mr Motjamela currently has six applications relating to his employment disputes before it. It thus exercised its inherent jurisdiction under section 173 of the Constitution to direct the Registrar not to accept any further applications from Mr Motjamela which relate to his employment disputes. The direct appeal and direct cross-appeal were upheld, the High Court’s vexatious litigant order was set aside and replaced with an order limited to Mr Motjamela’s employment disputes, the mental health assessment orders were set aside, and each party was ordered to bear its own costs.
The Full judgment here
Case CCT 126/25/24
[2026] ZACC 30
Hearing Date: 12 February 2026
Judgement Date: 07 July 2026
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Tuesday, 7 July 2026, the Constitutional Court handed down judgment in an application for confirmation of an order of the High Court of South Africa, Western Cape Division, Cape Town, declaring certain provisions of the Refugees Act 130 of 1998 unconstitutional and invalid.
The applicants are the Scalabrini Centre of Cape Town and its trustees. The respondents are the Minister of Home Affairs, the Director-General of Home Affairs, the Chief Director of Asylum Seeker Management in the Department of Home Affairs, the Refugee Appeals Authority of South Africa and the Standing Committee for Refugee Affairs. The Helen Suzman Foundation, Amnesty International, the Global Strategic Litigation Council for Refugee Rights, the International Detention Coalition and the United Nations High Commissioner for Refugees were admitted as amici curiae.
This matter concerns access to the asylum system. It raised the question whether asylum seekers may be prevented from having their claims determined on the merits because of procedural non-compliance relating to their immigration status, manner of entry into South Africa or failure to report to a Refugee Reception Office within the prescribed period.
The challenged statutory provisions are sections 4(1)(f), 4(1)(h), 4(1)(i) and 21(1B) of the Refugees Act. Broadly speaking, these provisions permit asylum seekers to be excluded from refugee status, or prevented from entering the asylum process, where they have allegedly committed certain immigration-related offences, entered South Africa other than through a designated port of entry, failed to report to a Refugee Reception Office within five days, or are not in possession of an asylum transit visa.
The High Court also declared regulations 8(1)(c)(i), 8(2), 8(3) and 8(4) of the Refugee Regulations unconstitutional and invalid. Those regulations concern the documents and explanations required from persons who seek to apply for asylum.
In the High Court, Scalabrini contended that the challenged provisions create a disbarment regime. Its case was that asylum seekers may be excluded from the asylum system solely because of procedural non-compliance, without any assessment of the merits of their claims. Scalabrini submitted that this violates the principle of non-refoulement, the Bill of Rights and international law.
The High Court upheld the challenge. It held that the challenged provisions prevent asylum seekers from accessing a merits-based determination of their claims, and that the provisions are particularly harmful to children. It therefore declared the challenged provisions and regulations unconstitutional and invalid. The matter came before this Court for confirmation of the High Court’s order of constitutional invalidity in respect of the provisions of the Refugees Act.
In a unanimous judgment penned by Majiedt J, this Court confirmed the declaration of constitutional invalidity.
This Court first considered whether it had jurisdiction. It found that the matter plainly engaged this Court’s constitutional jurisdiction because it concerned the confirmation of a declaration of constitutional invalidity of provisions of an Act of Parliament.
The Court then addressed the respondents’ purported attempt to appeal against the High Court’s declaration that the regulations are invalid. The Court held that declarations of invalidity concerning regulations do not require confirmation by this Court. Regulations are subordinate legislation. A party wishing to challenge a declaration of invalidity concerning regulations must bring a proper application for leave to appeal under rule 19 of this Court’s Rules.
The respondents did not do so. Instead, they purported to rely on rule 16 and section 172(2)(d) of the Constitution, which concern confirmation proceedings relating to Acts of Parliament, provincial Acts and conduct of the President. This was the incorrect procedure. The purported application was also substantially out of time, and no application for condonation was filed. The respondents therefore did not properly place the validity of the regulations before this Court.
The consequence was that this Court was concerned only with the constitutionality of sections 4(1)(f), 4(1)(h), 4(1)(i) and 21(1B) of the Refugees Act. The regulations, having been declared invalid by the High Court and not properly appealed, were treated as having no legal force. However, the Court considered them in a limited way to understand how the statutory scheme was intended to operate in practice.
The respondents argued that Scalabrini’s challenge was abstract and should not be entertained. This Court rejected that argument. It held that Scalabrini had placed extensive evidence before the High Court from affected persons, experts and community stakeholders. That evidence provided a sufficient factual foundation for the constitutional challenge. The Court held that, in any event, even where a challenge is abstract, courts may in appropriate circumstances consider facial constitutional challenges to legislation, particularly where rights are threatened.
Turning to the merits, this Court first considered sections 4(1)(f), 4(1)(h) and 4(1)(i). These provisions operate as procedural filters. They allow asylum seekers to be disqualified from refugee status because of immigration-related procedural non-compliance before their claims are assessed on the merits.
This Court held that this is inconsistent with the principle of non-refoulement. That principle protects asylum seekers against being returned to a country where they may face persecution or serious harm, unless and until their claims have been finally rejected after a proper merits-based process. The protection applies before formal recognition as a refugee, because a person may in substance be a refugee even before that status has been formally determined.
The Court held that procedural non-compliance, even where serious, cannot justify disbarment from the asylum system without a merits-based assessment. The impugned provisions bear no resemblance to the limited exceptions to non-refoulement recognised in international refugee law, such as where a refugee poses a danger to the security of the host state or to the community.
The respondents relied on Ruta, Abore and Ashebo. The Court held that reliance to be misplaced. Ruta and Abore confirmed the importance of non-refoulement and the need for merits-based assessment. Ashebo is distinguishable, because it concerned detention at an earlier stage of the asylum process and deliberately left open the question whether the impugned provisions are unconstitutional. That disposed of sections 4(1)(f), 4(1)(h) and 4(1)(i).
The Court then considered section 21(1B). It did so in two ways.
The first approach considered section 21(1B) together with the now-invalid regulations. On this approach, section 21(1B), read with regulation 8(3), creates a threshold process that may prevent an asylum seeker from entering the asylum system before the merits of the claim are considered.
The Court made plain that this first approach is not a departure from the well-settled principle, which this Court has previously confirmed in Marshall, that regulations may not be relied upon as an aid to the construction of the meaning of a statute. The Court found that considering regulation 8(3) in assessing the constitutionality of section 21(1B) was permissible in this case. This is because the regulation was not used to override, restrict or alter the meaning of the section. Rather, it was considered as part of the broader legislative context in which section 21(1B) operates. The regulation therefore did not dictate the meaning of the Act, but merely assisted the Court in understanding how the statutory scheme was designed to operate.
Moreover, the Court held that this scheme creates multiple and confusing standards. An asylum seeker may, in terms of different provisions in the Refugees Act, be required to show “valid reasons”, “good cause” or “compelling reasons” at different stages, to different officials, in relation to substantially the same procedural non-compliance. None of these standards is adequately defined. The scheme provides no meaningful criteria to guide decision-makers and creates a real risk of arbitrary and inconsistent decision-making.
The second approach considered section 21(1B) in isolation, without regard to the regulations. On this approach, the provision is vague and functionally ineffective. It requires an immigration officer to interview an applicant to determine whether “valid reasons” exist for the absence of an asylum transit visa, but it does not explain what counts as a valid reason, how the enquiry must be conducted, or what legal consequence follows from the outcome of the interview.
This Court held that, considered on its own, section 21(1B) permits an arbitrary exercise of public power. It subjects vulnerable asylum seekers to an additional bureaucratic process without clear standards, guidance or consequences. It therefore fails on rationality and is unconstitutional.
The Court also accepted that the challenged provisions have serious consequences for children. Where a child’s asylum claim is tied to that of a parent, the child may be excluded from the asylum system because of the parent’s procedural non-compliance. This occurs without an individual assessment of the child’s circumstances and without proper regard to the child’s best interests, contrary to the dictates of section 28 of the Constitution.
For these reasons, the Court held that sections 4(1)(f), 4(1)(h), 4(1)(i) and 21(1B) of the Refugees Act are inconsistent with the Constitution and invalid. The High Court’s order of constitutional invalidity was therefore confirmed. As to remedy, the respondents did not seek a suspension of the declaration of invalidity or any reading-in order. The Court therefore confirmed the declaration of invalidity.
Turning to costs, the Court held that the respondents must pay the applicants’ costs. The Court observed that the respondents litigated poorly in relation to their purported challenge to the High Court’s order declaring the regulations invalid. Their failure to follow the proper procedure, their delay, and their failure to seek condonation were matters of serious concern.
The Court further expressed concern about sweeping and unsupported assertions made during argument regarding Afghani and Bangladeshi nationals’ involvement in human trafficking in South Africa. The Court held that such assertions, made without an evidentiary foundation, undermined the integrity of the State’s case and risked promoting prejudicial narratives about refugees and asylum seekers. This conduct was deserving of strong deprecation.
The Court made the following order:
- 1. The order of the High Court of South Africa, Western Cape Division, Cape Town, declaring sections 4(1)(f), 4(1)(h), 4(1)(i) and 21(1B) of the Refugees Act 130 of 1998 inconsistent with the Constitution and invalid, is confirmed.
- 2. The respondents must, jointly and severally, pay the applicants’ costs, including the costs of two counsel.
.
The Full judgment here