Case  CCT 90/26
[2026] ZACC 34

Hearing Date: 29 June 2026 

Judgement Date: 31 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 31 August 2026, the Constitutional Court handed down judgment in a matter involving two urgent applications. The first was an application for leave to appeal directly against the order and judgment of the High Court of South Africa, Gauteng Division, Johannesburg (High Court). The second application was for direct access.

There were three judgments in this matter. The first judgment, was penned by Theron J, with Mlambo DCJ, Mathopo J, and Mhlanta J concurring. The second judgment was penned by Nuku AJ, with Dambuza J, Kollapen J, and Majiedt J concurring. The third judgment was penned by Rogers J.

The applicants were two former Presidents: Mr Jacob Zuma and Mr Thabo Mbeki. The first respondent was Commissioner Sisi Khampepe, who was a Justice of this Court from 2009 until her retirement in 2021. In May 2025, President Ramaphosa appointed her to serve as the Chairperson of the Judicial Commission of Inquiry into Allegations Regarding Efforts or Attempts Having Been Made to Stop the Investigation or Prosecution of Truth and Reconciliation Commission Cases (Commission). The respondents also included the other two members of the Commission, retired Judge Frans Kgomo and Advocate Andrea Gabriel SC, the Commission’s Chief Evidence Leader: Advocate Ishmael Semenya SC, the National Prosecuting Authority (NPA) and the Calata Group: a collective term referring to families who had been seeking the prosecution of apartheid-era crimes that involved the torture and killing of their relatives.

After receiving notices to participate in the Commission’s proceedings, the applicants applied to the Commission seeking Commissioner Khampepe’s recusal. They raised concerns in respect of her prior institutional roles. These include Commissioner Khampepe having been a Commissioner of the Truth and Reconciliation Commission (TRC) between 1995 and 2001; a member of its Amnesty Committee, which decided amnesty applications; and the Deputy National Director of Public Prosecutions between 1998 and 1999. It was during this latter period that the TRC referred cases to the NPA for investigation and potential prosecution and the NPA established its Human Rights Investigation Unit (HRIU) to review and make recommendations on the TRC cases.

The applicants argued that, taken together, Commissioner Khampepe’s close institutional and decisional proximity to the essential backdrop to the Commission’s present mandate creates a reasonable apprehension of bias warranting her recusal.

They also raised alleged procedural irregularities which, in their view, evinced the appearance of bias. These include the allegations that Commissioner Khampepe endorsed an irregular witness-leading arrangement between Advocate Semenya and the lead counsel of the Calata Group and that she had improperly coached or assisted Advocate Semenya when his recusal was sought.

Commissioner Khampepe declined to recuse herself in a ruling issued on 30 January 2026. In that ruling, Commissioner Khampepe determined that the applicants failed to demonstrate a logical connection between her prior roles and the Commission’s present investigation. She emphasised that the Commission’s mandate is to inquire into alleged efforts to supress the TRC cases for the period since 2003. Commissioner Khampepe found a temporal boundary existed between this period and her tenure at the TRC and the NPA, which ended on or before 2001. Further, Commissioner Khampepe found that the allegations related to Advocate Semenya were not relevant to her ability to discharge her duties at the Commission.

The applicants approached the High Court on an urgent basis to review and set aside the recusal ruling. In the High Court, President Ramaphosa filed an explanatory affidavit stating that he did not know of Commissioner Khampepe’s prior roles at the NPA and the TRC and that he would not have appointed her had he been aware.

In an answering affidavit, the Commission respondents raised a preliminary point that the High Court lacked jurisdiction under section 47(1) of the Superior Courts Act 10 of 2013 (Act). Section 47(1) provides that no civil proceedings may be instituted against “a judge of a Superior Court” without the consent of the head of that court. The applicants neither sought nor obtained consent from the Chief Justice prior to instituting the review proceedings.

The Full Court produced two judgments. The majority accepted the section 47(1) preliminary point, and dismissed the review application. The majority reasoned that the section applies to all civil proceedings, including review applications. It held that section 47(1) does not distinguish between active and retired judges and found that chairing a commission of inquiry constitutes judicial service. The majority did not consider the merits of the review application.

The minority parted ways with the majority’s interpretation of section 47(1), which it saw as unduly formalistic. According to the minority, recusal applications are not new actions against judges but arise from existing proceedings. Applying this reasoning, the minority stated that the recusal applications for Commissioner Khampepe should not be treated as civil actions against her. The minority concluded that section 47(1) is inapplicable in the present case.

The minority then considered the merits of the review application. It found that Commissioner Khampepe acted beyond authority in deciding the recusal applications alone despite oral argument having been made before all members of the Commission. It reasoned that the applications should have been decided by the Commission collectively. The minority found that Commissioner Khampepe’s prior institutional roles were sufficient to raise a reasonable apprehension of bias..

First judgment

The first judgment, penned by Theron J, with Mlambo DCJ, Mathopo J, and Mhlanta J concurring, held that this Court had jurisdiction to hear the matter and that the interests of justice favoured granting leave to appeal directly.

Unanimously, this Court found that section 47(1) did not apply to Commissioner Khampepe. On a holistic interpretation, section 47(1) serves three related purposes. First, it shields judges from vexatious and frivolous litigation. Second, it ensures that the functioning of courts are not unduly undisrupted by civil proceedings against judges. Third, the section safeguards judicial independence by enabling judges to apply the law without fear, favour or prejudice. In these respects, section 47(1) operates in tandem with our common law by striking an appropriate balance between judicial independence and accountability, as well as the proper administration of justice.

Section 47(1) affords limited but not infinite protection to judges of Superior Courts. For a judge to be considered a “judge of a Superior Court” and thus protected by section 47(1), that judge must form part of the composition of a Superior Court. In terms of section 167(1) of the Constitution and section 4(1) of the Act, the Constitutional Court comprises the Chief Justice, the Deputy Chief Justice and nine other judges. Commissioner Khampepe ceased to be a judge as envisaged by section 167(1) upon her retirement; and was thus not a “judge of a Superior Court” for the purposes of section 47(1). Commissioner Khampepe’s role as the Chairperson of a commission of inquiry did not bring her within the ambit section 47(1) either. This was because a commission of inquiry was not a court of law.

The first judgment found that it is settled law that a statute can be used to interpret another statute only when the two are in pari materia (of the same subject matter). The term “service” and its definition in the Judges’ Remuneration and Conditions of Employment Act 47 of 2001 (Remuneration Act) does not extend section 47(1)’s ambit. The Superior Courts Act addresses the governance and functioning of the courts whereas the Remuneration Act provides a framework for the remuneration and conditions of employment of judges. The subjects of these two pieces of legislation are dissimilar and there is insufficient overlap to justify interpretative borrowing.

Having found section 47(1) inapplicable, the first judgment then found that it would not have been appropriate to remit the matter to the High Court due to the urgency of the case and the need to bring finality to it. While midstream reviews are generally disfavoured, the Court unanimously held that a complaint of actual or reasonably apprehended bias goes to the core of proceedings and is akin to a plea of jurisdiction, justifying judicial consideration.

Turning to the applications which sought Commissioner Khampepe’s recusal, the first judgment declined to exercise review jurisdiction under the Promotion of Administrative Justice Act 3 of 2000 (PAJA) because the applicants did not sufficiently plead that the recusal decision was of an administrative nature. However, since commissions of inquiry exercise public power, their conduct attract judicial scrutiny under the principle of legality.

On the question whether Commissioner Khampepe could decide recusal alone, the first judgment concluded that neither rule 11 of the Commission’s Rules nor this Court’s jurisprudence require recusal applications to be determined collectively. Rule 11 is silent on the power to decide recusal applications. While in SARFU, members of this Court decided recusal applications individually and collectively, it made clear that judges have jurisdiction over applications for their own recusal. Thus, the first judgment found that Commissioner Khampepe did not act unlawfully when deciding the recusal application by herself.

On bias, the first judgment noted that the question whether bias is a standalone ground of review under the principle of legality is a complex and novel question of law that had not been properly ventilated before this Court. Given the consequences that deciding the issue would have had on exercises of public power, the first judgment refrained from doing so. That notwithstanding, the first judgment considered that rationality, as a standard under the doctrine of legality, found application. Unlike PAJA, which applies only to decisions or the failure to take them, legality constrains all exercises of public power. The first judgment noted that the fundamental question in a rationality inquiry is whether the means employed are capable of achieving the given ends.

The first judgment considered this Court and the Supreme Court of Appeal’s judgments, which show that the demands of rationality depend on the circumstances of each case. The first judgment concluded that if the presence of actual or reasonably apprehended bias precluded an exercise of public power from achieving the purpose for which it was conferred, the exercise of public power would be irrational.

The first judgment observed that the Commission’s purposes were, amongst others, uncovering whether efforts or attempts were made to stop of the investigation and prosecution of the TRC cases and restoring public confidence. It concluded that these purposes cannot be served if the Chairperson of the Commission was tainted by a reasonable apprehension of bias.

6 The first judgment then considered whether a reasonable apprehension of bias existed in respect of Commissioner Khampepe. It stressed that the question was not whether there was actual bias or whether this Court thought that Commissioner Khampepe was capable of carrying out her mandate impartially. The question was whether a reasonable, objective and fair-minded observer, apprised of the facts, would have apprehended that a decision-maker might have been unable to bring an impartial mind to bear. Under the test, both the person apprehending the bias and the apprehension itself must be reasonable and the party alleging bias bears the onus of establishing the existence of this apprehension.

The first judgment noted that while the burden on an applicant for recusal may be formidable, it is not an escape mechanism for courts to dismiss meritorious applications. It reiterated that a decision-maker should not hesitate to recuse themselves where reasonable grounds for an apprehension of bias exist. Additionally, doubts must be resolved in favour of recusal. In sum, allegations of bias must be based on concrete facts and reasonable grounds; but, equally, cogent and substantiated calls for recusal must be treated seriously.;

Relying on this Court’s judgments in SARFU and Bernert, the first judgment further notes that where an applicant establishes a nexus between a decision-maker and the subject-matter before them, and where the precise nature of such connection is within the peculiar knowledge of the decision-maker, it is incumbent on the decision-maker to disclose relevant information which might reasonably be relevant to the recusal application.

The first judgment considered Commissioner Khampepe’s roles as Deputy National Dirctor of Public Prosecutions. In that capacity, she was empowered to determine prosecution policy, issue policy directives and intervene in prosecution processes when policy directives were not complied with. She occupied that role when HRIU was established for the purpose of dealing with the TRC cases. However, she simply denied having had any knowledge of the prosecution policy of the TRC cases during her tenure. Given the link between her previous role and the subject matter before the Commission, the first judgment found that it was incumbent on her to disclose the nature and scope of her role to dispel any apprehension of bias.

The first judgment found that the temporal boundary relied on in the recusal ruling was artificial. This was so because the alleged interferences in the investigation or prosecution of the TRC cases may have been presaged by earlier negotiations and arrangements. It noted that this was apparently accepted by the Commission itself. The Commission had called witnesses to give evidence on events predating 2003.

The first judgment considered that Commissioner Khampepe is in a position to make adverse findings against her former organisation and her former colleagues in respect of events that occurred at that organisation. It noted that had she not been the Chairperson, she may have been a competent and compellable witness herself.

The first judgment also noted that her role at the NPA coincided with her time on the TRC’s Amnesty Committee. This meant that she was on both the referring and receiving end of some TRC cases. While serving on the Amnesty Committee, Commissioner Khampepe gained personal knowledge about some of the very same cases that are before the Commission. For these reasons, the first judgment found that a reasonable, objective and informed observer would conclude that Commissioner Khampepe might not be able to bring an impartial mind to bear. It would thus have had her recused from the Commission.

The first judgment also refused the NPA’s application for condonation for its late filing of it explanatory affidavit.

Second judgment

The second judgment was penned by Nuku AJ, with Dambuza J, Kollapen J and Majiedt J concurring. It agreed with the first judgment’s reasoning and conclusion: (a) on the section 47(1) point in limine; (b) that the Court should have entertained the merits of the review application; and (c) that condonation of the NPA’s late filing of its explanatory affidavit should have been refused. However, it diverged from the first judgment on whether the review application should have succeeded. This was for two reasons: (a) the applicants did not properly plead procedural rationality as a ground of review; and (b) the facts pleaded by the applicants fell short of establishing a reasonable apprehension of bias against Commissioner Khampepe.

The second judgment was of the view that the first judgment incorrectly considered bias as reviewable under procedural rationality, holding that “the presence of a reasonable apprehension of bias is not rationally related to the achievement of the Commission’s purpose”. The second judgment took the view that the pleaded case by the applicants was insufficient and did not establish an attack on the recusal ruling by Commissioner Khampepe based on procedural irrationality.

President Zuma asked this Court for the following relief: upholding the appeal itself and granting the relief sought. Despite this ambiguity, the second judgment understood the relief sought by President Zuma to be that this Court should find that it was not necessary for him to have obtained the consent of the Chief Justice before instituting the review proceedings against Commissioner Khampepe, and that this Court should grant the review application which the majority in the High Court had not determined. In President Mbeki’s notice of motion before this Court, he simply asked this Court to set aside the recusal decision based on PAJA or, in the alternative, the principle of legality. Thus far, the second judgment noted that it is clear that the attack targets the recusal decision.

In the High Court, President Zuma pleaded that “under the principle of legality, the decision of Commissioner Khampepe is reviewable as it was not taken lawfully, rationally, and in the manner consistent with the constitutional requirements of accountability, openness and fairness”. The second judgment agreed that the first judgment correctly dismissed this ground of review holding that it is bad in law. On rationality, the second judgment determines that President Zuma’s pleaded case was an attack on the recusal decision, which was alleged not to have been taken rationally. The second judgment was of the view that this attack was based on substantive rationality, which was quite distinct from procedural rationality.

The second judgment agreed with the first judgment in its setting out of the legal position that, for the applicants to succeed, they were required to establish a nexus between the decision-maker and the subject matter of the Commission. In grappling with this question, the second judgment distinguished itself from the first as it did not conclude that the facts presented by the applicants to persuade this Court of Commissioner Khampepe’s bias, establish a nexus between her role in the NPA and the mandate of the Commission in the eyes of a reasonable and objective observer.

The second judgment stated that there is a difference between the standard that requires an applicant to establish a nexus between the decision-maker’s role and the subject matter, on the one hand, and the question posed in the first judgment about whether a nexus has been established in the eyes of a reasonable, objective observer. The standard requires that the nexus be established by evidence, but on the first judgment’s premise, the establishment of the nexus is not a matter of evidence but an observation by a reasonable and objective observer – that is, an appearance.

The second judgment found that the first judgment approached the inquiry from the incorrect premise, focusing on the roles Commissioner Khampepe played while at the TRC and the NPA, without any attempt to assess, on the basis of evidence rather than appearance, whether the nexus has been established. The second judgment found it necessary to recall what this Court stated in Masuku regarding the reasonable apprehension of bias and prior associations. It stated that “the test for reasonable apprehension of bias requires more than mere association with a matter. The relevant connection must call into question the ability of the judge to apply their mind in an impartial manner to the case before them.”

On this basis, the second judgment found that it would be insufficient to ground a reasonable apprehension of bias on mere institutional associations. More was required. The applicants made generalised averments that Commissioner Khampepe occupied positions in the Amnesty Committee and the NPA. The second judgment was of the view that these generalised averments cannot constitute grounds for recusal on a reasonable apprehension of bias. This was as they do not indicate that Commissioner Khampepe would have been be unable to bring an independent and impartial mind to bear on the evidence before her.

Based on the above, the second judgment dismissed the review application.

Third judgment

The third judgment was penned by Rogers J. In a separate concurrence, it agreed with the order in the second judgment but did not support some of the reasoning furnished for it. He concludes that the commission’s proceedings were not administrative action and thus could not have been reviewed under PAJA. However, he held the view that commissions exercise public power, subject to legality constraints. He also held that bias should be recognised as an independent ground of review in the case of commissions of inquiry, rather than being dealt with as a facet of procedural irrationality.

Rogers J emphasised that a commissioner did not have statutory power, in place of courts, to determine her recusal. While it may have been desirable to request her withdrawal, should she have declined, the review court must have tested bias objectively and examined whether the commission’s proceedings were lawful, given the alleged bias of one of the commissioners. The challenge was directed at the lawfulness of the commissioner’s participation in the commission’s proceedings. While the applicants had incorrectly challenged the rationality or lawfulness of Commissioner Khampepe’s ruling, this was no

basis to decline to decide the case on the correct legal basis, absent prejudice. Accordingly, Rogers J disagreed with the second judgment’s conclusion that the case should have failed due to deficient pleadings but agreed that bias was not established on the pleadings.

The Full judgment  here

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