Authored By: Sthandiwe Bhengu
North-West University
Case Citation and Basic Information
Full Case Name: Goodman Tshabangu v The State and Tshwane Society of Advocates (Amicus Curiae)
Citation: [2026] ZACC 32
Court: Constitutional Court of South Africa
Date of Decision: 27 July 2026
Bench Composition: Nkulu AJ (unanimous); Mlambo DCJ, Dambuza J, Kollapen J Mathopo J, Mhlantla J, Opperman AJ, Savage J and Tshiqi J concurring.
INTRODUCTION
The ruling in Tshabangu v. S [2026] ZACC 32 establishes clear limits on judicial interventionism in the criminal court system of South Africa. Fundamentally, the case explores the delicate balance between the fundamental “adversarial” need of impartiality and the presiding officer’s “inquisitorial” authority to ensure justice is done. Although courts have the authority to call or recall witnesses under sections 167 and 186 of the Criminal Procedure Act (CPA) in order to avert a miscarriage of justice, this ruling makes it clear that these powers cannot be abused to save a weak prosecution or to conduct investigations irrelevant to the accused’s guilt. This ruling is strategically significant because it upholds the “presumption of innocence” as a substantive constitutional guarantee rather than just a formal one. The Constitutional Court has established a strict procedural boundary by reversing a conviction obtained through improper judicial intervention, stating that judicial discretion under sections 167 and 186 of the CPA must never descend into the realm of prosecution at the expense of trial fairness.
FACTS OF THE CASE
The lawsuit is related to a violent robbery and murder on April 28, 2006, in which Mr. Fayaz Ahmed Suliman was shot and killed. Thirteen days later, on May 11, 2006, the applicant, Mr. Goodman Tshabangu, was arrested for an unrelated vehicle hijacking, which became the focal point of the State’s case against him.[1] The applicant was found in possession of a firearm during this arrest. However, serious inconsistencies over the weapon’s identity quickly jeopardised the chain of evidence. Inspector Phosa, the arresting officer, initially noted that the gun was a 7.65mm calibre with one round of ammo.[2] In contrast, Inspector Maloma, the investigating officer, subsequently stated that the firearm taken from the police station for ballistics testing was a 9mm calibre.[3]
The major record for evidence, the SAP 13 register, revealed obvious changes where “9mm” had been removed and substituted with “7.65mm.”[4] The High Court judge first stated that there was no evidence connecting the applicant to the murder weapon, specifically stating that there were “vast lacunae” and that the applicant “must walk home” because the State had failed to prove its case, despite a ballistics report matching the 9mm weapon to the bullet found in the deceased.[5]
When accusations of record-tampering and prosecutorial misconduct were brought up during the closing remarks of Accused 1, a self-represented co-accused, the timeline and integrity of this evidence became the main source of contention. The High Court judge made the decision to recall state witnesses suo motu based only on these oral arguments rather than admissible evidence.[6] Inspector Patrick Sithole, who the applicant’s attorney had asked to testify about a potential earlier conviction for the same possession crime (an autrefois convict concerns), was notably omitted by the judge despite identifying witnesses such as Inspector Phosa and Inspector Maloma.[7] In response to leading questions from the bench during the second round of hearing, Inspector Phosa withdrew his earlier statement, saying he had misjudged the calibre.[8] The applicant’s final constitutional challenge was based on these procedural irregularities, in which the judge attempted to “sort out” records rather than determine guilt.
LEGAL ISSUES
The Constitutional Court was presented with the inherent conflict between the constitutional requirement of “maintaining trial fairness” and the judicial mission of “seeing justice done” in this case. The following specific legal issues were brought up in the case:
Whether the applicant’s right to a fair trial under section 35(3) of the Constitution was infringed by the trial court’s use of discretion under sections 167 and 186 of the CPA by essentially assuming the prosecution’s role and entering the arena.[9]
If the trial court correctly implemented the inferential reasoning rules established in R v. Blom with relation to the “recent possession” of a murder weapon, and if this misapplication amounts to a factual dispute or a jurisdictional matter of law.[10]
Whether it is in the best interests of justice to overlook an almost six-year delay in requesting leave to appeal, which was mostly brought on by the applicant’s incarceration and lack of means.[11]
ARGUMENTS PRESENTED
The arguments revealed a long-standing disagreement about the boundaries of judicial authority. Whether a trial is still fair if a judge steps in to close evidentiary gaps that the State neglected to address was the strategic “So What?” of the lawsuit.
1.1 The Applicant’s Arguments The applicant argued that the High Court violated the presumption of innocence by “descending into the arena” to repair a State case that had failed. He contended that the court improperly used sections 167 and 186, which are meant to determine guilt, in order to look into prosecutorial misconduct.[12] In addition, he contended that the court’s use of reasoning in Blom was flawed since it solely inferred culpability, disregarding the plausible possibility that he obtained the weapon after the murder. The petitioner listed several major barriers to condonation, including his incarceration since 2006, the death of his mother in 2021, who was his main source of financial support, and his status as a lay litigant depending on the counsel of other prisoners.[13] He argued that these elements, along with the likelihood of success, made condonation crucial to the pursuit of justice.
1.2 Respondents (States) Arguments The State’s main objections to the application were procedural and jurisdictional. The respondent contended that as the applicant was only contesting factual conclusions and the trial court’s assessment of the evidence, the Constitutional Court lacked jurisdiction.[14] Citing Boesak, the State argued that it is not a constitutional issue whether there is enough evidence to support a conviction. In addition, the State contended that the petitioner had not given a complete and adequate explanation for each period of the six-year delay, making it unreasonable. The State contended that the application had little chance of success because the Supreme Court of Appeal had already addressed the concerns submitted.[15]
THE COURT’S ANALYSIS AND REASONING
The Constitutional Court developed a methodology that gave “substantive fairness” precedence over “formalistic adherence.”[16] Three crucial questions guided the Court’s reasoning:
Condonation and Jurisdiction Based on the “interests of justice” criteria, the Court recognised that a nearly six-year wait is excessive but warranted forgiveness. The Court acknowledged “incarceration as a significant obstacle” to timely filing in accordance with its own precedents in Sithole and Ramabele.[17] The applicant’s financial depletion and lack of legal assistance were seen as real obstacles to navigating the legal system. The Court allowed condonation because of the significant consequences for the applicant’s freedom and the likelihood that the fair trial challenge would be successful.[18]
CPA Sections 167 and 186: The Tension Between “Umpire” and “Administrator” The judge’s function as an “administrator of justice” was compared to that of an “umpire” by the Court. Sections 167 and 186 grant courts inquisitorial powers, but they must be used with “absolute impartiality.”[19] The Court determined that the High Court had improperly applied these sections. Investigating any “misconduct” and “falsification of records” by the prosecution—matters unrelated to determining the accused’s guilt—was the trial judge’s declared goal.[20] The court gave the impression of partiality by calling witnesses to “sort out” the State’s shortcomings after both sides had concluded their cases and based on Accused 1’s inadmissible oral statements.[21] The ZACC emphasised that the administration of justice calls for an acquittal rather than a judicial rescue effort if the State is unable to prove its case. The Court also pointed out the High Court’s lack of objectivity in vigorously inviting witnesses who supported the State’s case while declining to invite Inspector Sithole to discuss the autrefois convict issue.[22] This particular action showed a departure from the “strict neutrality” that Masooa demanded.[23]
Boundaries of Jurisdiction and Inferential Reasoning The Court explained that the High Court had used the Blom principles of circumstantial evidence rather than a “doctrine of recent possession.”[24] The Court determined that the applicant’s argument to the Blom inference was fundamentally a dispute with the assessment of facts regarding the distinction between mistakes of law and misapplications of law. The Court determined that it lacked power to examine a simple misapplication of established legal principles to facts in the wake of Villa Crop and Tuta.[25] However, because the underlying procedural irregularities—specifically, the “coaching” of witnesses through leading questions during the judicial recall—vitiated the conviction completely, the Court determined that it was not essential to rule on the inference.[26] A lack of obvious impartiality was further demonstrated by the judge’s wilful rejection of Inspector Maloma’s testimony in favour of a version that benefited the prosecution.[27]
JUDGEMENT AND RATIO DECIDENDI
The Constitutional Court upheld the appeal in its entirety after granting leave to appeal. The applicant was exonerated of all charges, and the High Court’s convictions and punishments were overturned.[28] The Court mandated that he be released from the Groenpunt Medium Correctional Center right away.
Ratio Decidendi
When a trial court uses sections 167 and 186 of the Criminal Procedure Act to resolve administrative issues irrelevant to determining the accused’s guilt or to rectify a failed State case, it commits a major irregularity that undermines trial fairness. Section 35(3) of the Constitution’s right to a fair trial and the assumption of innocence are violated by such involvement.
CRITICAL EVALUATION
By establishing the boundaries of judicial action, the Tshabangu ruling represents a turning point in South African jurisprudence. It acts as an essential safeguard against “inquisitorial overreach” in an essentially adversarial system.
Significance and Consequences The ruling upholds the State’s exclusive burden of proof, safeguarding the adversarial foundation of the legal system. It’s obvious what the “So What?” is: a judge cannot serve as an additional prosecutor while posing as a “administrator of justice.” This discourages judges from “truth-seeking” if that search is driven by a desire to save a weak prosecution, which has important ramifications for trials in the future where the State’s evidence is weak. It upholds the Kwinika principle that, regardless of judicial discomfort, an acquittal must occur when there is insufficient evidence at the end of a case.[29]
Despite effectively resolving the procedural flaws, the Court may have lost a chance to advance the law by declining to rule on the “doctrine of recent possession” in relation to murder weapons. The Court gave lower courts little guidance on whether this theft-centric doctrine can be used to murder cases by treating the matter as a misapplication of Blom (fact) rather than a jurisdictional question of law (the legal scope of the doctrine).[30] In subsequent situations where the procedural flaws are less obvious, this “jurisdictional avoidance” could result in uneven applications. However, by tying the defence of the “presumption of innocence” to the general integrity of the legal system, the Court guaranteed that the right to a fair trial will always be a fundamental component of the Bill of Rights.
CONCLUSION
In Tshabangu v. S the Constitutional Court reaffirmed that the right to a fair trial is more important than judicial expediency. The ruling is a strict reminder that the “administration of justice” is accomplished by clearing an accused person when the State is unable to meet its burden of proof, not by obtaining a conviction in the face of prosecutorial errors. Under the CPA, judicial intervention is a tool for clarity rather than a “cure-all” for a failing prosecution. No one should be deprived of their freedom through a procedure that jeopardises judicial impartiality, as the Court’s decision to overturn a long-standing conviction and excuse a significant delay highlights. The non-negotiable cornerstone of the South African legal system is and must continue to be the right to a fair trial, particularly the right to be tried before an impartial tribunal.
REFERENCE(S):
PRIMARY SOURCES
Tshabangu v S [2026] ZACC 32
S v Van der Walt [2020] ZACC 19; 2020 (2) SACR 371 (CC)
S v Ramabele [2020] ZACC 22; 2020 (2) SACR 604 (CC)
S v Tuta [2022] ZACC 19; 2024 (1) SACR 242 (CC)
R v Blom 1939 AD 188
R v Rall 1982 (1) SA 828 (A)
R v Hepworth 1928 AD 265
S v Kwinika 1989 (1) SA 896 (W)
Villa Crop Protection (Pty) Ltd v Bayer Intellectual Property GMBH [2022] ZACC 42; 2024 (1) SA 331 (CC)
STATUTES
Constitution of the Republic of South Africa, 1996
Criminal Procedure Act 51 of 1977
[1] Tshabangu v S [2026] ZACC 32 para 8.
[2] Ibid para 11.
[3] Ibid.
[4] Ibid para 20.
[5] Ibid para 17.
[6] Ibid paras 13-15.
[7] Ibid para 16.
[8] Ibid para 19.
[9] Ibid para 45.
[10] Ibid paras 63-64.
[11] Ibid paras 38-39
[12] Ibid para 45.
[13] Ibid para 35.
[14] Ibid para 5.
[15] Ibid para 37.
[16] S v Van der Walt [2020] ZACC 19 para 23.
[17] Tshabangu (n 1) para 40.
[18] Ibid para 42.
[19] Ibid para 51.
[20] Ibid para 87.
[21] Ibid para 88.
[22] Ibid para 99.
[23] S v Masooa [2016] ZAGPJHC 27 para 26.
[24] Tshabangu (n 1) para 63.
[25] Ibid paras 64-67.
[26] Ibid paras 93-94.
[27] Ibid para 98.
[28] Ibid para 103.
[29] S v Kwinika 1989 (1) SA 896 (W) 898.
[30] Tshabangu (n 1) para 63.
