Case  CCT 194/24 & CCT 196/24
[2026] ZACC 33

Hearing Date: 16 and 17 September 2025 

Judgement Date: 14 August 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, 14 August 2026, the Constitutional Court handed down judgment in consolidated applications for leave to appeal an order of the Supreme Court of Appeal (SCA). The SCA order at issue had suspended an order of the Makhanda High Court setting aside a decision to grant an exploration right and its subsequent renewals, pending the outcome of a third application for the renewal of that exploration right. The matters concern whether the SCA was entitled to interfere with the High Court’s remedial discretion to set aside the exploration right and, if so, whether the SCA’s order was just and equitable.

In CCT 194/24, the first applicant is Sustaining the Wild Coast NPC, a non-profit company which inter alia (among others) aims to promote sustainable livelihoods and protect the natural environment on the Wild Coast. The second to seventh applicants are members and representatives of the Umgungundlovu Community, the Dwesa-Cwebe Community, Wild Coast fishers and Kei Mouth Fisheries. The seventh applicant is All Rise Attorneys for Climate and Environmental Justice NPC, a law clinic representing communities fighting against climate change. These applicants shall be referred to as the “SWC applicants”.

In CCT 196/24, the applicants are Natural Justice, a voluntary association which provides legal support to indigenous people and local communities, and Greenpeace Environmental Organisation, which works towards the achievement of environmental rights and social and environmental justice in communities across South Africa. These applicants shall be referred to as the NJ applicants. Where the context requires, “applicants” refers to both the SWC and NJ applicants.

The respondents who oppose the applications are: the Minister of Mineral Resources and Energy (Minister), who is the first respondent in both cases; Shell Exploration and Production South Africa BV and BG International Limited (collectively, Shell), who are the third and fifth respondents in CCT 194/24 and the second and fourth respondents in CCT 196/24; and Impact Africa Limited (Impact), who is the fourth respondent in CCT 194/24 and the third respondent in CCT 196/24. Where the context requires, “company respondents” to refer to Shell and Impact collectively.

The background of the matter is as follows. The Wild Coast is a 250-kilometre strip of the Eastern Cape coast and, apart from its overwhelming beauty, carries deep cultural and economic significance, supporting the spiritual practices and customary fishing rights of the communities living along the coast. The Wild Coast is also home to many species of endangered marine and avian life. The area enjoys a special legal status as designated coastal property in terms of the Natural Environmental Management: Integrated Coastal Management Act 24 of 2008 (ICMA).

In 2013, Impact applied for an exploration right in terms of section 79 of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) to undertake a seismic survey to seek out oil and gas reserves on the Wild Coast. The DMRE granted Impact the exploration right on 29 April 2014. No meaningful exploration activities were conducted in terms of the right during its initial term of three years, and Impact applied for and was granted two renewals in terms of section 81 of the MPRDA in 2017 and 2021. In June 2021, the Director-General of the DMRE consented to the transfer of a 50% participating interest in the exploration right to Shell. The granting of the exploration right and the 2 renewals are referred to as the “impugned decisions”.

On 29 October 2021, Shell gave notice of its intention to commence with a 3D seismic survey along the Wild Coast. In December 2021, the SWC applicants approached the High Court for relief in two parts. Part A resulted in the company respondents being interdicted from undertaking the seismic survey operations under the exploration right, pending the finalisation of Part B, which sought to review and set aside the impugned decisions and, in the alternative, sought declaratory relief that the company respondents could not commence exploration activities without an environmental authorisation in terms of the National Environmental Management Act 107 of 1998 (NEMA issue). Thereafter, the NJ applicants sought and obtained leave to join as applicants in the proceedings.

In Part B, the High Court found in favour of the applicants and set aside the impugned decisions on three independent grounds being:

• 1. lack of meaningful consultation after having found that Impact had not given the Interested and Affected Parties proper notice of the nature and purpose of the survey, or the information needed to make meaningful representations, nor the opportunity to make such representations;
• 2. the failure on the part of the Minister to take into account three relevant considerations, namely the anticipated harm to bird and marine life on the Wild Coast; the Wild Coast communities’ spiritual and cultural rights and rights to livelihood; and climate change considerations. The High Court held that the decision-maker ought to have invoked the precautionary principle in these respects; and
• 3. non-compliance with applicable legal prescripts being section 80(1)(g) of the MPRDA, in that the objects referred to in section 2(d) and (f) were not satisfied. This finding related to the failure of the Environmental Management Programme (EMPr) to substantiate its claims that the seismic survey would create jobs, improve socio-economic conditions or increase government revenue.

The High Court found it unnecessary to consider the NEMA issue. It took the view that the success of the review would render the relief sought under NEMA, redundant. With the leave of the High Court, the Minister and the company respondents approached the SCA seeking to set aside the High Court’s judgment and order. The applicants cross-appealed the High Court’s refusal to determine the NEMA issue.

The SCA did not unsettle any of the grounds upon which the High Court found that the impugned decisions were reviewable. The SCA found that once a ground of review under the Promotion of Administrative Justice Act 3 of 2000 (PAJA) had been established, section 172(1)(a) of the Constitution requires the decision to be declared unlawful. However, held the SCA, that was not the end of the matter. It found that the matter must then be dealt with under section 172(1)(b) of the Constitution, and the High Court had failed to do so in not considering the question of just and equitable relief.

The SCA found that the High Court had erred in not weighing up relevant factors, including the almost eight-year delay between the granting of the exploration right and the review; the company respondents’ financial expenditure in the region of R1.1 billion; the fact that there was only one more opportunity to renew the exploration right; the economic and social benefits that would fail to materialise without the exploration; and the fact that a moratorium had since been placed on exploration rights over the entire South African coast.

The SCA noted that the company respondents had applied for a third renewal on 21 July 2023 (after the High Court judgment was handed down) and that, in terms of section 81(5) of the MPRDA, an exploration right remained in force until the renewal application was granted or refused. The SCA held that it was within its power to direct that, as part of a proper consideration of the third renewal application, a further public participation process should be conducted to cure the identified defects in the decision-making process. The SCA thus dismissed the appeal but suspended the High Court’s order setting aside the impugned decisions pending determination of the third renewal (suspension order).

The SWC and NJ applicants separately applied for leave to appeal against the SCA’s suspension order and against its failure to consider their cross-appeal on the NEMA issue. The company respondents, in turn, lodged a conditional cross-appeal against the setting aside of the decisions to grant the exploration right and its renewals.

On 27 August 2024, the Constitutional Court dismissed with costs the company respondents’ counter-applications to conditionally cross-appeal, holding that there were no reasonable prospects of success. This Court also refused to grant the applicants leave to appeal in respect of the NEMA issue, finding that neither the High Court nor the SCA had adjudicated the issue, and it would not be in the interests of justice for this Court to consider it for the first time. Accordingly, the main issue before the Court in this matter was the appeal against the SCA’s suspension order.

In this Court, the applicants argued that the matter engaged this Court’s jurisdiction as it pertained to breaches of the right to meaningful consultation, which in turn implicates sections 24, 25, 30 and 31 of the Constitution, and that the question of a just and equitable remedy under section 172 of the Constitution also triggered this Court’s jurisdiction. The SWC applicants submitted that this matter also triggered this Court’s general jurisdiction, because the obligation to consult meaningfully is far-reaching and the SCA’s order had the potential to undermine the right to meaningful consultation. The NJ applicants stated that the matter concerned just and equitable remedies after unlawful administrative action had been set aside in terms of PAJA. This Court, they said, had previously held that the interpretation of PAJA constitutes a constitutional issue.

On the merits, the applicants argued that the SCA’s suspension order was not just and equitable because the order did not vindicate the applicants’ rights as the public participation process contemplated by the SCA is not curative. This is so, they said, because the factors which the Minister may consider in a renewal application are narrow, and the MPRDA does not provide for a consultation process to be considered in the context of a renewal application.

Furthermore, the NJ applicants submitted that not only does the MPRDA not provide for consultation to be considered but actually precludes it, since section 81 requires the Minister to grant a renewal if certain administrative requirements are met, consultation not being one of them. In similar vein, they argued that the Minister’s failure to take into account relevant considerations (such as the ICMA, or parties’ cultural rights) would also not be rectified, as section 81 does not mandate the Minister to consider such factors. The SWC applicants also noted that section 81 does not compel the Minister to reassess the objectives set out in section 2(d) and (f) of the MPRDA or to re-evaluate the social, cultural and environmental impact of the exploration.

Apart from the order not being just and equitable, the SWC applicants further argued that the suspension order was legally incompetent, since the exploration right had been set aside, albeit that the setting aside order had been suspended pending a decision on the third renewal. A renewal, they said, is an extension or continuation of the initial right and depends on the existence of a valid exploration right. That is, the third renewal, if granted, would extend the exploration right for two years, but the exploration right itself would no longer exist. In their written submissions, the SWC applicants also posited that the suspension order was not legally permissible. They argued that the High Court exercised its discretion judicially in deciding to set aside the exploration right, and there was no basis for the SCA to interfere with that order.

The NJ applicants also argued that the suspension order was made without affording the parties the benefit of audi alteram partem (hear the other side) (audi). This is so, they stated, as the order was neither sought by any party, nor was the possibility of such an order being made canvassed with the parties with a view to seeking their views.

The Minister accepted that this Court’s jurisdiction was engaged but submitted that the applicants had no prospects of success as the SCA lawfully exercised a true discretion and it would be inappropriate for this Court to interfere with that order. The Minister agreed that the MPRDA does not make provision for further consultation at the stage of renewal, but submitted that there is nothing inappropriate about the SCA making such an order. The Minister stated that he would be obliged to consider all relevant factors, including the further consultation mandated by the SCA.

Impact accepted that certain aspects of the matter engaged the constitutional jurisdiction of this Court, but stated that it is not in the interests of justice to grant leave to appeal. Impact stated that the High Court failed to undertake the mandatory second step of determining a just and equitable remedy, so the SCA was justified in interfering with and setting aside the High Court order. On the other hand, Impact submitted that the applicants did not make any arguments which warranted this Court’s interference with the SCA’s remedial discretion. Impact argued that the suspension order was just and equitable and effectively vindicated the applicants’ rights, as nothing in section 81 of the MPRDA precludes a fresh consultation or precludes the Minister from considering new information.

Shell did not contest jurisdiction but submitted that it was not in the interests of justice to grant leave to appeal. Shell contended that the SCA exercised its remedial discretion appropriately, striking a balance between all parties’ interests and without misdirecting itself on the facts, and that there WAS no basis for this Court to interfere with its remedy. Shell submitted that remittal is the default remedy in administrative reviews, and that the SCA crafted a remedy which was as close to remittal as possible, given that there would be severe prejudice to the company respondents if the right were simply set aside. Shell argued that the prejudice that was suffered was the unlawful failure to be consulted and the decision-maker’s failure to take relevant factors into account. It argues that the purpose of the proposed consultation is to accommodate the interests of affected parties and will rectify the prejudice that was suffered. Shell argues that there was no violation of audi rights as the Minister raised the issue of suspension in the SCA.

Shell denied that the Minister’s hands are tied in a renewal process and contended that section 81 of the MPRDA allows the Minister to renew the right if the “terms and conditions of the exploration right [are] not in contravention of any relevant provision of this Act or any other law”. It submitted that the Minister may thus consider compliance with PAJA as part of the renewal process, and the Minister could decline the renewal if PAJA requirements were not met.

There were two primary issues for determination in this matter. The first was whether this Court had jurisdiction to hear the matters and, if so, whether leave to appeal was to be granted. The second is whether this Court was entitled to interfere with the SCA’s exercise of its remedial discretion in determining a just and equitable order.

Two judgments were produced in this matter. The first, the majority judgment, written by Kollapen J, with Maya CJ, Mathopo J, Mhlantla J, Musi AJ, Theron J and Tshiqi J concurring, concluded that this Court’s constitutional and general jurisdiction was engaged in that the appeal raised significant questions regarding the scope and formulation of just and equitable remedies under section 172(1)(b) of the Constitution, the interpretation and application of PAJA and the vindication of fundamental rights of affected communities and others under sections 24, 25, 30 and 31 of the Constitution. Furthermore, it concluded that these issues were of significant public import with reasonable prospects of success and as such leave to appeal was granted.

Turning to the SCA’s interference with the High Court’s order, the first judgment considered this Court decision in Residents of Industry House which held that in determining just and equitable relief, a court must balance the interests of all parties and the public interest. In failing to balance the relevant interests of all affected parties, the first judgment agreed with the SCA’s finding that the High Court misdirected itself on the legal principles in that it “erred in not weighing up the relevant factors”. In the circumstances, the first judgment concluded that the SCA was entitled to set aside order of the High Court, in so far as it relates to remedy, and to assess afresh the question of a just and equitable remedy.

Turning to the question whether this Court was entitled to interfere with the SCA’s exercise of its discretion, the first judgment explored the SCA’s explicit endorsement of the substantive findings of the High Court and concluded that it was required to at least have regard to the fact that the exploration right and the two renewals had been granted unlawfully on three independent grounds. Despite its endorsement of the High Court’s findings, the SCA characterised most of these defects as a corollary of the inadequate consultation process. On this basis, the SCA took the view that a further public consultation process could cure the procedural shortcomings in the impugned decisions.

The first judgment concluded that the SCA was wrong in this summation and it misdirected itself in granting the suspension order in the following respects:

• 1. It reckoned that the failure to consult when the exploration right was granted under section 79 could be cured through consultation in a renewal application under section 81. Without making any definitive finding on whether section 81 requires public consultation in all instances, it must be accepted that the section cleary does not provide for consultation of the kind envisaged by the SCA order (that is, consultation that might have justified the refusal of the initial exploration right). The first judgment concluded that it was not appropriate in law to infuse such a consultation into the renewal process when the MPRDA does not contemplate it and when it does not conform to the sequencing of the MPRDA in relation to the requirements for the grant of an exploration right as opposed to its renewal.
• The SCA incorrectly conceptualised the deficiencies in the impugned decisions as consultation-linked and purported to craft a remedy that was confined to curing those defects. In doing so, it failed to consider all the review grounds that the High Court found to have existed and, in particular, failed to consider how the remedy it ordered would address the review grounds that were not consultation-linked. These include the failure of the decision-maker to take into account climate change considerations and the ICMA; the failure of the decision-maker to apply the precautionary principle; and the failure to comply with applicable legal prescripts.
• 3. The SCA contemplated consultation in the renewal process as part of its remedy (even though it did not explicitly order so) but failed to provide guidance on how the consultation would be undertaken and by whom, and how its outcome would be factored into the process of renewal of the exploration right.

 

In light of the above the first judgment concluded that the suspension order of the SCA lent itself to interference by this Court.

Having established that there are grounds to interfere with the remedial discretion of the SCA, the first judgment turned to consider the question of a just and equitable remedy afresh. In doing so it endorsed and laid as the basis for its determination the following principles: that a just and equitable remedy should focus, where possible, on affording the most effective remedy to the party whose rights have been infringed, and only thereafter consider whether countervailing considerations justify an attenuation of the ordinary consequences of invalidity; that remittal is regarded as the default remedy does not constrain the court’s ability to break from that norm as every remedy is subject to the overarching requirements of justice and equity; and that there are cases where setting aside is required, but remittal is not possible or appropriate, and substitution is not warranted. In those circumstances, setting aside absent remittal or substitution does not mean that there is an undecided application or that a legal vacuum is created.

Applying the last principle to the present matter, the first judgment concluded that the setting aside of the impugned decisions would not automatically mean that the process must be rewound to when the application was accepted by the Petroleum Agency of South Africa (PASA) under section 79 of the MPRDA as the second judgment found. Without deciding that PASA’s acceptance constitutes administrative action, the first judgment posited that if the Court were minded to set aside the impugned decisions alone, it would be sufficient to proceed on the basis that the acceptance of an application under section 79 is a stage in a composite administrative process culminating in the decision made under section 80. It is the same application under section 79 that serves before the decision-maker in terms of section 80, and it does not have a separate legal existence once the application for a right advances. Therefore, upon setting aside the impugned decisions, it does not follow that there is a pending application which requires determination.

In considering a just and equitable remedy in the present circumstances, the first judgment concluded that a remittal is not a just and equitable remedy when what is contemplated is in fact a fresh application with new information to be sourced or supplied and then a fresh decision taken on the application. This would be particularly so when the cause of the invalidation can be substantially attributed to the party whose application stands to be remitted, as in the present circumstances.

It further concluded that remittal would not be just and equitable in the present case because:

• 1. Consultation followed by remittal would not would fully vindicate the violation of the applicants’ rights. It noted that consultation is not merely about the opportunity to express a view or influence an outcome. On a more fundamental level, regardless of whether the product of consultation has any effect, it is a process which affirms human dignity by affording a seat at the table to those whose lives and livelihoods may be impacted by decisions. To tell communities, more than a decade after the fact, that they may now be consulted, would not be curative to their right to dignity. Instead, it would say to them that the violation of their rights was not a matter of substance but rather a matter of process.
• 2. Remittal would not enable a fresh decision to be taken in light of the significant changes in the factual and legal matrix since the original application for an exploration right and the EMPr were submitted in 2013. In the circumstances, an effectively substantive fresh application would have to serve before the decision-maker under the guise of an “amended” or “updated” application. The first judgment concluded that to allow a process to be re-run in such circumstances risks affording that party an opportunity to improve its position ex post facto (after the fact). The first judgment held that there was little reason to afford parties who significantly contributed to the unlawfulness in the process an opportunity to make out a case it failed to properly advance in the first instance.
• 3. Remittal would allow the parties to side-step the moratorium which is an independent policy decision of the Executive ostensibly taken in the public interest. It would also grant the company respondents a windfall by permitting them, if a decision is made to grant the exploration right, to three more renewals. This would have the anomalous result of conferring a tangible advantage on those who benefited from, and were complicit in, an unlawful process.
• 4. The application for an exploration right was seriously and indeed fatally flawed if regard is had to the findings of the High Court. Impact contributed to the unlawfulness of the decision in disturbing ways and it could not reasonably have believed that meaningful consultation had occurred. In the circumstances, the first judgment concluded that a distinction must be drawn between parties who contribute to unlawfulness and those who are innocent recipients of an unlawful benefit and have had no hand in the unlawfulness. The enquiry should not be inverted by unduly focusing on what is fair for the defaulting party.

 

In conclusion, the first judgment found that having considered the extent and materiality of the breach; the interests of all affected parties and the public interest; the conduct of the parties and their complicity in the unlawfulness; and practical considerations that go with the feasibility of remitting an application that is 13 years old and where circumstances would have changed quite considerably, remittal would not constitute a just and equitable remedy. In the circumstances, it upheld the appeal and concluded that the corrective principle demanded that the SCA order be set aside and replaced with an order reinstating the order of the Makhanda High Court. The first judgment concluded that any other remedy would allow financial investment to outweigh grave constitutional violations and would signal that the rights of affected parties are subordinate to commercial interests.

In a dissenting judgment, Rogers J, with Savage J concurring, disagreed with the conclusion that there were grounds to interfere with the SCA’s exercise of its remedial discretion. Even if there were grounds to interfere, he held that a just and equitable remedy should accommodate the interests of all parties and preserve the possibility of granting the oil companies a final three-year period of exploration, subject to proper consultation and lawful reconsideration.

The dissent took the view that the exploration application was validly lodged and accepted by PASA in 2013. It accepted that the remedies listed under PAJA are non-exhaustive. However, it considered that the acceptance of the exploration application was a distinct exercise of public power with legal consequences. It thus adopted the view that once the grant of the exploration right was set aside, the exploration application remained pending before the Director-General. The pending application could either be remitted for reconsideration or substituted with the court’s own decision.

On that basis, Rogers J held that the first judgment’s remedy foreclosed the possibility of granting the exploration application and consequentially refused the exploration application and the renewal applications. It did so without such a remedy having been sought, canvassed in the papers and without addressing the exceptionality discipline required by section 8 of PAJA. The dissent expressed concern that this exercise of remedial power may allow courts in future to grant non-remittal orders and take substituted decisions refusing administrative applications without recourse to section 8.

In considering just and equitable relief, the dissent accepted that the communities’ right to be genuinely consulted was neglected and that important cultural, religious and environmental concerns were not properly considered. However, the dissent favoured an approach that would accommodate the interests of all sides. It held that the communities’ interests could be vindicated by returning the oil companies to the position they occupied immediately after PASA accepted the exploration application. Fresh consultation with all IAPs would follow and the Director General would have to consider the application afresh in light of that consultation and relevant statutory considerations. This would recognise the seriousness of the original shortcomings, give communities an opportunity to influence the process and potentially preserve the oil companies’ R1.1 billion expenditure.

The dissent rejected the view that the lapse of time in itself justified foreclosing the possibility of granting the exploration application. There was no evidence to show that reconsideration had become impossible or that the factual and technical landscape had changed so fundamentally as to require a practically new application. In Rogers J’s view, neither the applicants nor the oil companies could be faulted for the seven-year delay in launching the review and for the delay in the prosecution of this case to finality, more so as each side pursued its position diligently through the appellate processes.

The dissent also held that it is fanciful to suggest that remittal would encourage administrative applicants to cut corners. Applications under the MPRDA involve substantial expenditure, effort and risk, and applicants are unlikely to risk proceeding unlawfully in the hope of curing defects later after a successful review. A remedy had to be just and equitable on the facts. Therefore, Rogers J concluded that the first judgment risked converting a case-sensitive remedial inquiry into a strict non-remittal rule for serious defects, even where the evidence does not justify such a punitive consequence.

The dissent found that remittal would not grant the oil companies an opportunity to sidestep any applicable moratorium. This was so as Impact’s application fell within the moratorium’s carve out, given that it was received before the relevant 2018 moratorium. Thus, the dissent found that it was the first judgment that actually sidestepped the moratorium notice’s carve-out for applications lodged before 2018 by treating the 2013 application as effectively dead while denying that it had been refused. Rogers J described this as consigning the application an impermissible twilight zone: supposedly neither granted nor refused, but practically incapable of ever being granted. This, in his view, could not be just and equitable.

The dissent further noted that the additional defects identified by the first judgment, including failures to consider climate change, the ICMA and the precautionary principle, were ordinarily matters that could be addressed on remittal. There was no need to treat the failure to consider relevant considerations as requiring a substituted refusal. As to the High Court’s “terse” finding of non-compliance with legal prescripts, it carried no decisive weight. The EMPr made modest and candid claims about the exploration project’s socio-economic benefits and the Director General could, upon remittal, request further information about the benefits of exploration if he so wished. Thus, Rogers J was of the view that it was far-fetched to hold that the exploration right had to fail because the information regarding the socio-economic analysis was unsubstantiated.

Accordingly, if this Court were to interfere with the SCA’s remedy, the dissent’s preferred remedy would have been either a properly structured version of the SCA’s order, allowing the Director General to decide whether a third and final three-year renewal should be granted after adequate consultation; or a remittal of the original exploration application for fresh consultation and re adjudication. If the exploration right were then granted, it would be limited to a three-year period with no further renewals. Nevertheless, the dissent maintained that there were no grounds to interfere with the SCA’s exercise of its remedial discretion. The SCA’s order may have required elaboration but the drafting deficiencies could have been corrected without rejecting the substance of the remedy.

The Full judgment  here

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