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