Case CCT 150/24
[2026] ZACC 16
Hearing Date: 25 November 2025
Judgement Date: 22 April 2026
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Wednesday, 22 April 2026, the Constitutional Court handed down judgment in an application for leave to appeal brought by the South African Human Rights Commission (SAHRC) against the judgment and order of the Supreme Court of Appeal. The central issue before the Court was whether the SAHRC has the power to issue binding directives following an investigation into alleged human rights violations.
The matter arose from a complaint lodged with the SAHRC in 2018 by occupiers of Doornhoek farm in Mpumalanga. The occupiers alleged that the respondents, Agro Data CC and Mr Francois Gerhardus Boshoff, had restricted their access to borehole water. The SAHRC conducted an investigation and found that the occupiers’ rights to access to water and dignity had been violated. It issued directives requiring that their access to water be restored, that the parties engage with each other and for the respondents to disclose relevant information to the occupiers to allow for meaningful engagement between the parties. The respondents failed to comply, prompting the SAHRC to approach the High Court to seek an order that its directives were binding.
The SAHRC relied heavily on this Court’s judgment in Economic Freedom Fighters v Speaker of the National Assembly [2016] ZACC 11 (EFF I), where it was held that remedial action taken by the Public Protector may, at times, have binding effect. The High Court interpreted section 184(2)(b) of the Constitution and section 13 of the South African Human Rights Commission Act 40 of 2013 (SAHRC Act), and found that the provisions grant the SAHRC co-operative powers rather than coercive powers. The High Court found that the SAHRC’s powers differ from those of the Public Protector, but this did not mean that the SAHRC’s powers were automatically non-binding. Instead, it held that if the SAHRC’s directives were aimed at securing appropriate redress, they may be binding. The High Court found that the directives issued by the SAHRC in this case pertaining to the provision of information and engagement between the parties were steps taken to secure appropriate redress and were therefore binding.
The SCA dismissed the appeal, finding that the SAHRC had no power to issue binding directives, and that the SAHRC’s role is to assist complainants to seek redress through appropriate fora.
In this Court, the matter was unopposed. Three amici curiae were admitted — the Centre for Applied Legal Studies, Afriforum NPC and ProBono.org. The SAHRC relied on EFF I to argue that decisions taken under constitutional authority must be complied with unless set aside by a court. It contended that the Constitution and SAHRC could be broadly interpreted to mean that its directives were binding.
CALS supported the SAHRC, and argued for a broad interpretation aligned with international law and which promoted effective access to remedies. ProBono.org submitted that the SAHRC’s decisions have legal effect, but accepted that enforcement requires court proceedings. AfriForum opposed both positions, submitting that the SAHRC has no binding powers at all.
In a unanimous decision, this Court found that the matter engaged this Court’s jurisdiction, and the interests of justice favoured granting leave to appeal. On the merits, it found that the wording of section 184(2)(b) and the SAHRC Act, read in context and in light of its purpose and legislative history, did not support an interpretation that the SAHRC has the power to issue binding directives. The powers of the SAHRC were distinguished from those of the Public Protector. The latter is empowered to take “remedial action” which may, at times, be binding, but the SAHRC is limited to “taking steps to secure appropriate redress”. It was held further that interpreting the SAHRC’s powers as non-binding does not undermine its constitutional role. Rather, it remains an important institution that promotes human rights through investigation, advocacy, and facilitating access to justice. Accordingly, this Court dismissed the appeal.
The Full judgment here
Case CCT 48/18
[2026] ZACC 12
Hearing Date: 27 May 2025
Judgement Date: 08 April 2026
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On 08 April 2026, the Constitutional Court handed down a unanimous judgment in proceedings concerning the determination of profits derived from a contract for the payment of social grants, which had previously been declared unlawful and the appropriate just and equitable remedy following that declaration of invalidity.
This matter formed part of the long-running litigation arising from the unlawful award of a tender for the countrywide payment of social grants. The litigation originated more than a decade ago in AllPay Consolidated Investment Holdings (Pty) Ltd v CEO of SASSA (AllPay I), where the Constitutional Court declared the award of the tender by the South African Social Security Agency (SASSA) to Cash Paymaster Services (Pty) Limited (CPS) constitutionally invalid. Subsequent litigation followed. In AllPay II, the resulting contract was also declared invalid, but the declaration was suspended to ensure the continued payment of social grants. That suspension was later extended in further judgments of this Court, including in Black Sash I and in subsequent proceedings in 2018. During these periods, CPS continued to render services. The Court ordered that CPS’s income, expenses and profits be audited and certified, while leaving open the question whether any profits should be repaid.
The present proceedings arose from an application by Freedom Under Law NPC seeking to compel CPS to furnish information required by National Treasury to determine whether, and in what amount, CPS had made a profit from the unlawful contract. The application also sought consequential relief relating to information held by Lesaka Technologies (Pty) Limited, and an order requiring Treasury to determine CPS’s profit.
Before the matter was heard, CPS was placed in liquidation at the instance of SASSA.
This development became central to the proceedings, as it bore directly on the practical utility of determining CPS’s profits and the nature of any relief that might follow. The Court noted that CPS’s liquidation gave rise to a concursus creditorum, with the effect that the rights of creditors were fixed and had to be pursued within the insolvency process. This had implications for the structuring of relief, including that set-off between claims arising before and after liquidation was generally not permissible.
In earlier proceedings, this Court had directed that a process be followed to enable Treasury to determine CPS’s profit, including independent verification by RAiN Chartered Accountants. Disputes arose regarding the adequacy, relevance and availability of information required for that exercise. A proposal to appoint a referee under section 38 of the Superior Courts Act to resolve these disputes was initially pursued but later abandoned due to practical and administrative difficulties. The matter was then re-enrolled for hearing.
In advance of the hearing, the Chief Justice directed CPS’s liquidator to provide a report on the status of the liquidation, including CPS’s assets and liabilities, prospects of recovery and the status of the liquidation enquiry. The liquidator reported that CPS’s uncontroversial assets amounted to approximately R50 million, while its liabilities substantially exceeded that amount. Significant claims had been proved by SASSA, and further substantial claims had been submitted by the South African Revenue Service. The report indicated that concurrent creditors might receive only a limited dividend, or none at all. Following receipt of the report, the Court issued directions requiring the parties to address the implications of the liquidation and whether it would be in the interests of justice to bring the matter to finality. The Court raised the possibility of determining CPS’s profit on the basis of the audited “certified profit” reflected in reports prepared by KPMG and Mazars, subject to necessary adjustments.
The Court first considered whether it was competent, in proceedings that had initially concerned the provision of information, to determine the ultimate issue of CPS’s profit and whether repayment should be ordered. As none of the parties objected, the Court held that it was empowered to determine this issue, relying on its wide remedial powers under section 172(1)(b) of the Constitution.
The Court noted that the declaration of invalidity in AllPay I had been based on failures by SASSA in the procurement process, rather than wrongdoing by CPS. However, subsequent orders of this Court had made clear that CPS had no entitlement to benefit from an unlawful contract without public scrutiny, and that it was required to account for its gains.
The Court considered the jurisprudence of the Supreme Court of Appeal, including the judgments in Venus Rays Trade, Phomella and Mafoko, concerning whether an innocent contractor may retain profits under an invalid contract. While accepting that an innocent contractor may in some circumstances retain benefits, the Court held that the present case was distinguishable. CPS had performed a public function of constitutional importance and had been held to be an organ of state for purposes of the contract. The continuation of the contract had been ordered to ensure the uninterrupted payment of social grants, not to preserve CPS’s private rights. In that context, the Court held that any benefit derived from the unlawful contract had to be subject to public scrutiny, and that it was just and equitable to consider repayment of profit.
The Court further distinguished this matter from cases such as State Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd and Buffalo City Metropolitan Municipality v Asla Construction (Pty) Ltd, where relief had been crafted to protect the accrued rights of innocent contractors and to prevent organs of state from benefiting from their own delay. By contrast, this case concerned the supervised implementation of an unlawful contract in the public interest, where accountability for public funds was central.
Turning to the factual position, the Court noted that audited reports prepared by KPMG and Mazars reflected a combined certified profit of approximately R252 million. A further verification exercise conducted by RAiN raised concerns regarding the accuracy of that figure and identified areas requiring further investigation. Disputes remained regarding the underlying information and methodology, and Treasury indicated that it was unable to determine a final profit without additional information.
In light of these disputes, and given CPS’s liquidation, the Court considered whether to adopt the certified profit as a baseline. The Court held that this was a sensible and practical approach, as a full factual enquiry would be lengthy, complex and of doubtful utility in circumstances where CPS was insolvent.
The Court then considered the necessary adjustments to the certified profit. It first addressed a High Court judgment delivered by Tsoka J, in terms of which CPS had been ordered to repay approximately R316 million to SASSA, together with interest. The Court found that this amount had not been taken into account in the certified profit and held that the certified profit had to be reduced by the capital amount together with interest. This adjustment was necessary to avoid double recovery.
Secondly, the Court considered retrenchment costs and found that the provision had not been incurred and had to be reversed, resulting in an upward adjustment. Thirdly, the Court considered Broad-Based Black Economic Empowerment expenditure. It accepted the concessions made by CPS’s liquidator and held that the certified profit had to be increased by amounts that were unsupported or improperly allocated. Fourthly, the Court considered SASSA’s claim for payment of services not rendered and held that this amount had to be deducted from the certified profit.
The Court declined to determine whether additional profits had been derived by Lesaka through intra-group transactions or whether there had been impermissible profit shifting, as this would have required a detailed factual enquiry not warranted in these proceedings.
The Court also considered pending litigation in which CPS sought an upward price adjustment from SASSA. It held that, if CPS succeeded, the additional amount would increase CPS’s profit, but CPS would not be required to repay that additional amount as profit to SASSA.
Having regard to all relevant adjustments, the Court concluded that the appropriate adjusted certified profit was R81 286 177.
As to costs, the Court held that the conduct of the parties did not warrant a costs order in favour of any party and ordered that each party bear its own costs.
The Court granted the following order:
- 1. CPS was ordered to refund the adjusted certified profit of R81 286 177 to SASSA, in respect of which SASSA was granted leave to prove a concurrent claim.
- 2. It was declared that, if CPS succeeded in its pending action against SASSA for an upward price adjustment, CPS would not be required to refund any increased price as additional profit.
- 3. Each party was to bear its own costs.
The Full judgment here
Case CCT 101/24
[2026] ZACC 13
Hearing Date: 08 May 2025
Judgement Date: 08 April 2026
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Wednesday 8 April 2026, the Constitutional Court handed down judgment in an application for leave to appeal against a judgment and order of the Supreme Court of Appeal, which found that the conduct of a trial Judge created a reasonable apprehension of bias, and that the trial Judge’s judgment on the merits on a dispute whether a distribution agreement, which dispute is explained below, (the initial dispute) was a nullity, and ordered Systems Applications Consultants (Pty) Ltd (SAC) to pay the legal costs of SAP SE (SAP) for the entire 74-day trial.
In 2008 SAC instituted proceedings against SAP in the High Court of South Africa, Gauteng Division, Johannesburg (High Court). The matter concerned a contractual dispute involving the existence or otherwise of a software distribution agreement between SAC and a subsidiary of SAP, SAP Systems Integration (SAPSI), and a claim for damages against SAP. SAC alleged that SAP had unlawfully interfered with and frustrated the performance of the alleged contract between SAC and SAPSI.
Here are the key facts relating to the alleged conclusion of the distribution agreement. On or about 6 August 2004 SAC’s director, Mr Peter Tattersall, signed two copies of the distribution agreement at a meeting with SAPSI. SAPSI did not countersign. Despite the lack of signature by SAPSI, SAC adopted the stance that the distribution agreement had been concluded. SAP disputed this. It did so by referring to four emails by means of which SAC sought a countersigned copy of the distribution agreement. According to SAP, these emails demonstrated that Mr Tattersall was aware that if SAPSI did not sign the distribution agreement, there would be no binding agreement between SAC and SAPSI.
On 12 October 2020 the hearing of the merits of the initial dispute commenced. The hearing was conducted over the Zoom virtual conference platform pursuant to the High Court’s practice during the COVID-19 pandemic. On 7 November 2020, the 20th day of the hearing, SAP’s counsel cross-examined Mr Linkies, a key witness for SAC, about a specific email, dated 21 September 2004 (SAPSI email). The SAPSI email had been circulated internally by Mr Linkies to his colleagues, urgently requesting internal approval of the distribution agreement. In the email Mr Linkies said that Mr Tattersall of SAC was breathing down his neck regarding the signing of the distribution agreement by SAPSI.
This email turned out to be a key point of dispute. At the hearing SAP’s counsel sought clarity through cross-examining Mr Linkies on the question of Mr Tattersall having breathed down his neck. This line of questioning persisted for a while. The trial Judge intervened and directed SAP’s counsel to desist from the line of questioning, saying, “May we proceed please and then you can argue that point. The question has been answered repeatedly.” Thereafter, an exchange ensued between SAP’s counsel and the trial Judge. SAP’s counsel attempted to justify his line of questioning. The trial Judge questioned its necessity in the light of the questions that had already been asked and answered. SAP’s counsel did not relent. Eventually, the trial Judge said, “When you’re finished, you’ll let me know. I’m taking a break.” The trial Judge proceeded to leave the virtual courtroom without first adjourning the proceedings, leaving the parties in silence.
Around two-and-a-half minutes later, the trial Judge returned, after which SAP’s counsel raised concerns with him about his conduct. The trial Judge explained, “You keep repeating one question after the other and you want a different answer.” The exchange culminated in the trial Judge asking SAP’s counsel whether he wanted the trial Judge to recuse himself. The trial Judge adjourned to afford SAP’s counsel an opportunity to take instructions on whether to file a recusal application.
On 9 November 2020 SAP filed an application for the recusal of the trial Judge. SAC opposed it. On 13 November 2020 the trial Judge dismissed the recusal application, and remarked that SAP failed to take into account additional facts and context which had led him to leaving the hearing, mainly that he needed to go to the bathroom. The initial dispute proceeded before the trial Judge and judgment was delivered on 7 December 2021. The trial Judge found against SAP, and declared SAP liable for such damages as SAC could prove. On 28 December 2021 SAP applied to the trial Judge for leave to appeal to the Supreme Court of Appeal against the recusal and the merits judgment. The trial Judge dismissed both applications for leave to appeal.
The Supreme Court of Appeal granted leave to appeal on 13 July 2022 in respect of both High Court judgments. Both appeals were argued before it. The Supreme Court of Appeal held that the trial Judge’s conduct created a reasonable apprehension of bias. It then held that the trial Judge’s judgment on the merits was a nullity. The merits judgment was vitiated by the fact that the trial Judge continued to preside over the trial in circumstances where he ought to have recused himself. Thus the Supreme Court of Appeal set aside the order on the merits without considering the merits of the appeal.
Before this Court, SAC argued that on the correct facts and as properly contextualised, the trial Judge could not have reasonably been suspected of bias. SAC further contended that the Supreme Court of Appeal made material errors of law and fact. SAC also submitted that, if this Court declares the 74-day proceedings before the trial Judge a nullity, that will result in a severe limitation of its section 34 rights. That, because the SAC lacks the funds to relitigate the merits afresh before the High Court. As a result, an order declaring the proceedings to be a nullity in their entirety is disproportionate. An appropriate remedy would be one that preserves the 74 days of evidence led before the trial Judge.
In the main, SAP argued that this matter turns on three issues. First, it argued that it was not in the interests of justice to grant leave to appeal in respect of the recusal application as there were no reasonable prospects of success. It also submitted that it was not open to SAC, at this stage of the proceedings, to present fresh evidence on its lack of funds to relitigate the merits and argue that it has been deprived of its right of access to court protected under section 34 right of the Constitution. Further, it contended that, where a reasonable apprehension of bias exists, the appropriate remedy is to set aside the proceedings in their entirety.
In a unanimous judgment penned by Madlanga ADCJ (Dambuza AJ, Goosen AJ, Kollapen J, Majiedt J, Opperman AJ, Rogers J, Theron J and Tshiqi J concurring), this Court held that its jurisdiction is engaged on the recusal issue. This Court has repeatedly held that recusal applications are a constitutional matter. Moreover, this Court held that, given the importance of the issues raised, the existence of reasonable prospects of success, and the implications of the outcome for the parties, it is in the interests of justice to have granted leave to appeal.
This Court addressed two preliminary points. The first being whether the trial Judge, in fact, made a ruling. The answer to this question bears relevance to the trial Judge’s reaction to SAP’s counsel’s continued cross-examination after the ruling, if there was one. The second point being whether, in establishing the existence of bias, this Court was confined to look only at the case made out in the founding affidavits in the recusal application, or whether this Court could have also considered factors and circumstances that could be gleaned outside of such affidavits, such as the conduct of the trial Judge during the remainder of the trial, as well as the reasons proffered by the trial Judge in a subsequent judgment on the recusal question.
On the first point, while the trial Judge may not have used language explicitly indicating that he was making a ruling, his language unequivocally directed SAP’s counsel to move on to a different line of questioning. This was a ruling. On the second point, different issues were considered to determine whether bias was shown to exist. After considering this Court’s jurisprudence on this issue, the conclusion reached was that this Court must consider all relevant evidence, including affidavits in the application for recusal, evidence in the entire record of proceedings, and the overall conduct of the presiding officer.
On the merits of whether there was a reasonable apprehension of bias in this matter, the trial Judge’s conduct of leaving the hearing and saying that cross-examination should continue in his absence without first adjourning the proceedings was most regrettable and clearly irregular. However, not all instances of irregular judicial conduct evince bias. Something more is required. That “something more” is that an informed, objective and reasonable litigant would conclude that the Judge was failing to bring an impartial mind to bear on the adjudication of the matter.
Whilst the conduct of the trial Judge was unacceptable, it did not amount to bias when properly considered. First, at no point did the trial Judge’s actions suggest that he disregarded SAP’s line of questioning, minimised the issue that SAP’s counsel was attempting to establish or made a factual finding, whether preliminary or definitive, on that issue. Even if the trial Judge had intimated some type of inclination, which he did not, this would ordinarily not be a sufficient basis to ground bias. Therefore, a reasonable, informed and objective litigant would not have concluded that there was a reasonable perception of bias. The significance of the interrupted line of cross-examination was overblown by SAP and the Supreme Court of Appeal.
Second, Judges are required to manage a trial actively, direct the trial process, point out when evidence is irrelevant and refuse to listen to it, and – if cross-examination of witnesses exceeds reasonable bounds – curtail it. Through his ruling, the trial Judge clearly wanted to move the proceedings on, with SAP’s counsel not being barred from arguing the point he was cross-examining on at a later stage. Of importance, SAP’s counsel had cross-examined to a point of tedium on the issue.
Third, a Judge has a duty to preside over, and remain an active participant in, a hearing and not to it – even if only for two minutes and thirty seconds – unless an adjournment has been called. While a reasonable, informed and objective litigant would realise the impropriety of the trial Judge’s conduct, properly contextualising the conduct, the litigant would conclude that the trial Judge was merely irritated and frustrated and likely needed to “cool off”. This did not translate to a reasonable apprehension of bias. Rather, this was a manifestation of absolute frustration with what was plainly annoying conduct by SAP’s counsel.
Based on the above, the appeal on the recusal question succeeded. The appeal on the merits, which was not decided by the Supreme Court of Appeal, was remitted for decision by that Court.
The Full judgment here