What happened
In 2009 the High Court sitting at Vereeniging convicted Mr Tshabangu of murder, two counts of robbery with aggravating circumstances, and unlawful possession of a firearm and ammunition, all arising from an armed robbery in April 2006. He had been arrested thirteen days after the robbery on another matter and found with a firearm. The State's case was a ballistics report matching a firearm to the bullet from the robbery, and two police officers: the one who arrested him and the one who took a firearm for testing.
At the close of both cases the trial judge said she had no evidence linking him to the murder and robbery. The arresting officer had described a 7.65 millimetre firearm; the other officer a 9 millimetre. She did not accept that the firearm found on him was the one tested. Then a co-accused, in his closing address, alleged that the firearm documents had been tampered with. The judge, saying she was concerned about possible prosecutorial misconduct, used sections 167 and 186 of the Criminal Procedure Act to recall the two officers. Under her questioning both now said 9 millimetre. She relied on the changed evidence, applied inferential reasoning, common purpose and dolus eventualis, convicted him on all counts and sentenced him to an effective twenty-two years. The Supreme Court of Appeal refused leave in 2017. He applied to the Constitutional Court in March 2023, unrepresented, with a condonation application following in October.
What the court held
In Tshabangu v S [2026] ZACC 32, handed down on 27 July 2026, a unanimous court written by Nuku AJ granted condonation, granted leave, upheld the appeal, replaced the High Court's order with an acquittal on all counts, and directed the head of the prison to release him immediately if he was serving no other sentence.
On condonation: roughly six years out of time, with explanations of financial hardship, family circumstances, no legal representation and no access to resources in prison, which did not cover the whole delay. But the State showed no discrete prejudice, the issues went to fundamental rights and the fairness of the administration of justice, and the appeal had good prospects. The interests of justice required condonation.
On sections 167 and 186: a trial judge is not an umpire but an administrator of justice, and the sections give an inquisitorial power. But every intervention in an adversarial trial risks the appearance of partiality, so the power carries a heightened duty of impartiality both in deciding to call a witness and in questioning one. The court set out six principles: the examination must be related to the trial; the court must not cross-examine; the court must remain impartial and visibly so in the scope of its questions; the presiding officer must not enter the arena of the prosecution; where justice requires it the court will come to the aid of an accused with inexperienced counsel; and the judicial officer must not only be impartial but be seen to be.
Measured against those, the trial judge had called the witnesses mainly to investigate prosecutorial misconduct rather than to decide the case; had acted on a co-accused's oral submissions, which were not evidence; had asked leading questions that changed the witnesses' testimony and then relied on the changes; and had not called the witnesses who could have shown whether the accused was already convicted of the possession charges, while calling those who helped convict him. The exercise of the powers was irregular and violated the right to a fair trial. The evidence it produced fell to be disregarded; on the evidence as it stood at the close of the cases there was nothing linking him to the crimes, and he should have been acquitted.
What it means for your practice
For criminal practitioners the six principles are now the test for any complaint that a presiding officer descended into the arena, and the facts here show what a breach looks like: a court calling witnesses to repair a case the State had failed to prove, and questioning them until the answers fit. The judgment also makes clear that the remedy is not a retrial but the exclusion of the irregularly obtained evidence and a verdict on what lawfully remains.
For every practitioner the condonation holding matters. Six years late, without an explanation for the whole period, and the court still heard it, because the other side could show no prejudice, the point went to fundamental rights, and the merits were strong. Prospects and the absence of prejudice carried a delay that would ordinarily be fatal. Do not advise a client with a strong point that the door has closed without weighing those factors.
There is a quieter lesson for defence practitioners at trial. When a court announces that it will call or recall witnesses, the objection has to be taken then, on the record, on the principles this court has now listed. The point survived here because the record showed what the judge did and why.
What to do on your files
On any criminal appeal where the trial court called or recalled witnesses, test the record against the six principles and plead the breach specifically: the purpose of the call, the source of the court's information, the form of the questions, and what the court declined to call.
On any late application where the client was unrepresented, in custody or without means, set out those facts in the condonation affidavit and put the respondent to its proof of prejudice. This judgment is the authority that a weak explanation can be carried by strong merits and no prejudice.
At trial, when the bench proposes to call a witness, ask for the purpose to be stated on the record and object if it is to supplement the prosecution's case. The objection costs nothing and preserves the appeal.
This note is drawn from the Constitutional Court's own media summary, which is not binding on the court; read the judgment before relying on it.
Source: Tshabangu v S [2026] ZACC 32 (CCT 281/23), Constitutional Court, 27 July 2026. The court's own page: https://www.concourt.org.za/index.php/judgement/656-tshabangu-v-s-cct281-23
