Tshabangu v S (CCT 281/23) [2026] ZACC 32

Case Citation and Basic Information

Case: Tshabangu v S (CCT 281/23) [2026] ZACC 32

Court: Constitutional Court of South Africa

Judgment Date: 27 July 2026

Hearing Date: 26 February 2026

Coram: Mlambo DCJ, Dambuza J, Kollapen J, Mathopo J, Mhlantla J, Nuku AJ, Opperman AJ, Savage J and Tshiqi J. Judgment written by Nuku AJ, with the rest of the Court concurring.

Parties: Goodman Tshabangu (Applicant) v The State (Respondent), with the Tshwane Society of Advocates admitted as amicus curiae.

Introduction

Tshabangu v S is a significant Constitutional Court judgment on the constitutional right to a fair trial under section 35(3) of the Constitution. The case examined whether a trial court acted fairly when it recalled witnesses after both the prosecution and defence had closed their cases. The Court considered the limits of sections 167 and 186 of the Criminal Procedure Act 51 of 1977, which allow courts to recall witnesses where their evidence is essential to a just decision. The judgment confirms that these powers must be exercised impartially and only for trial-related purposes, and it ultimately led to the applicant’s acquittal on all counts.

Facts of the Case

The case arose from an armed robbery and murder committed on 28 April 2006. Goodman Tshabangu was arrested thirteen days later, on 11 May 2006, in connection with an unrelated hijacking matter. During that arrest, police found him in possession of an unlicensed firearm with its serial number erased.

He was subsequently charged with murder, two counts of robbery with aggravating circumstances, unlawful possession of a firearm, and unlawful possession of ammunition. At trial, the only evidence directly linking him to the offences was the firearm found in his possession — ballistics testing matched it to the bullet that killed the victim, although the two police witnesses gave inconsistent evidence about the firearm’s calibre.

After both the State and the defence had closed their cases, a co-accused’s closing address raised allegations that police records relating to the firearm had been altered. Although these allegations were never formally admitted as evidence, the trial judge relied on them to recall two police witnesses under sections 167 and 186 of the Criminal Procedure Act. Their further testimony changed materially from their original evidence and ultimately strengthened the link between the firearm and the offences. The applicant was convicted on all counts and sentenced to an effective 22 years’ imprisonment. His subsequent appeals in the ordinary courts were unsuccessful.

Legal Issues

• Whether the Court’s jurisdiction was engaged by the applicant’s complaints.
• Whether condonation should be granted for the applicant’s lengthy delay in approaching the Court.
• Whether the trial court improperly exercised its powers under sections 167 and 186 of the Criminal Procedure Act by recalling witnesses.
• Whether recalling witnesses after both parties had closed their cases violated the applicant’s right to a fair trial.
• Whether the trial court misapplied the doctrine of recent possession in drawing an inference of guilt.

Arguments Presented

Applicant’s Arguments

The applicant argued that although sections 167 and 186 permit courts to recall witnesses, this power cannot be used in a way that undermines fair trial rights. He submitted that the trial judge relied on unproven allegations raised during argument, rather than admissible evidence, to reopen the case and allow the prosecution to fill evidentiary gaps. He further argued that the judge’s manner of questioning the recalled witnesses showed a loss of impartiality, creating a reasonable perception of bias.

Respondent’s Arguments

The State argued that the Criminal Procedure Act expressly authorises courts to recall witnesses where necessary to do justice, that the trial judge acted within her statutory powers, and that no prejudice arose because the applicant’s representative had the opportunity to be present when the witnesses were questioned. On this basis, the State maintained that the applicant received a fair trial.

Condonation

Before reaching the merits, the Court had to decide whether to condone the applicant’s delay of almost six years in bringing this application, and a further seven-month delay in seeking condonation for that delay. Weighing factors including the applicant’s incarceration, his lack of legal representation for much of the period, the absence of demonstrated prejudice to the State, and the strength of his underlying case, the Court found it was in the interests of justice to grant condonation despite the length of the delay.

Court’s Reasoning and Analysis

The Constitutional Court recognised that sections 167 and 186 confer wide powers on trial courts to recall or subpoena witnesses where justice requires it, reflecting the judge’s role as more than a passive umpire. However, these powers must always be exercised consistently with the accused’s right to a fair trial under section 35(3) of the Constitution, and a court must not only be impartial but be seen to be impartial.

The Court found that the trial judge’s decision to recall the witnesses was problematic on several grounds: it was prompted by unproven allegations rather than admissible evidence; its underlying purpose (investigating apparent record-tampering) was not directly related to determining guilt; and, once the witnesses were recalled, the judge’s own questioning was not conducted with the neutrality required, contributing to a material change in testimony that favoured the prosecution. The Court also noted that the trial judge declined to recall a witness who might have supported the defence, while pursuing witnesses whose evidence helped the State — a pattern inconsistent with even-handedness.

Doctrine of Recent Possession

The Court also considered whether the trial court had applied the doctrine of recent possession in inferring the applicant’s guilt from his possession of the murder weapon. It held that the trial court had, in substance, applied ordinary principles of inferential reasoning rather than the specific doctrine, and that a complaint about how those principles were applied to the facts was an evidentiary dispute, not a constitutional matter. The Court accordingly held that it lacked jurisdiction over this particular ground of appeal.

Judgment, Order and Ratio Decidendi

The Constitutional Court granted condonation and leave to appeal, and upheld the appeal. It held that the trial court’s recall and questioning of the witnesses infringed the applicant’s constitutional right to a fair trial. Because the improperly admitted evidence had to be disregarded, no evidence remained linking the applicant to the offences at the point the cases had originally closed. The Court set aside the applicant’s convictions, found him not guilty and acquitted him on all counts, and ordered his immediate release from custody if he was not serving any other sentence.

Ratio decidendi: A trial court’s power to recall witnesses under sections 167 and 186 of the Criminal Procedure Act must always be exercised impartially, for a purpose connected to the just decision of the case, and consistently with section 35(3) of the Constitution. These powers may not be used to remedy weaknesses in the prosecution’s case or in a manner that creates an appearance of judicial partiality.

Critical Analysis

The judgment is significant because it reinforces the constitutional principle of judicial impartiality. Criminal trials depend on judges acting as independent, neutral decision-makers rather than participants in the prosecution or defence. The decision provides useful guidance on sections 167 and 186: while trial courts retain real discretion to recall witnesses, that discretion is not unlimited and must always respect the accused’s constitutional rights.

The judgment also promotes public confidence in the criminal justice system by insisting that convictions be obtained through fair procedures, not through judicial intervention that effectively assists one party. Some might argue that restricting judicial intervention could make it harder to uncover the truth in criminal trials. The Constitutional Court’s answer is that fairness is itself an overriding constitutional value — the legitimacy of a conviction depends not only on reaching a factually correct outcome, but on reaching it through a process that respects the rights of the accused.

The outcome in this case — an acquittal after nearly two decades of incarceration — is a striking illustration of just how seriously the Court treats this principle: a factually plausible case against the applicant was nonetheless set aside because of how it was assembled.

Conclusion

Tshabangu v S is an important Constitutional Court decision on the constitutional right to a fair trial. It confirms that although courts have statutory powers to recall witnesses, those powers cannot be used in a way that undermines judicial impartiality or assists the prosecution in proving its case. The case strengthens constitutional protections for accused persons, clarifies the jurisdictional limits on challenges to inferential reasoning, and provides valuable guidance for judges exercising powers under the Criminal Procedure Act. Its lasting significance lies in affirming that criminal trials must not only reach a just outcome, but must be conducted in a way that inspires public confidence in the independence and neutrality of the judiciary.

Reference(S):

Tshabangu v S (CCT 281/23) [2026] ZACC 32.

Constitution of the Republic of South Africa, 1996.

Criminal Procedure Act 51 of 1977, ss 167 and 186.