Two Gauteng High Court judges. Two completely opposite rulings. Same set of 1961 Exchange Control Regulations. And Bitcoin sitting in the middle like the awkward guest at a family braai who everyone suddenly has strong opinions about.
In May 2025, Judge Mandlenkosi Motha in Pretoria said cryptocurrency is not money and not capital under the old rules. The South African Reserve Bank (SARB) appealed that one straight away, and the judgment sits suspended while we wait for the Supreme Court of Appeal (SCA).
Then, on 1 June 2026 – literally days ago – Judge Stuart Wilson in Johannesburg said Bitcoin is both money and capital. He called Motha’s judgment “clearly wrong” and upheld the forfeiture of roughly R6 million in Bitcoin and Rand from Square Mangundhla and Fungai Dangaiso. They had moved about 1,680 BTC (worth around R182 million at the time) from Luno accounts to offshore / self custody wallets between 2018 and 2020.
Welcome to regulatory whiplash, South African style.
What Motha Actually Said
The Standard Bank v SARB case involved Leo Cash and Carry, a business that had moved thousands of Bitcoin offshore. SARB went after bank accounts linked to those flows and forfeited the money under the Exchange Control Regulations.
Judge Motha looked at the text, the history, and the purpose of the 1961 rules (designed for a world of physical currency, bank wires, and easily traceable capital). He applied the SCA’s earlier Oilwell precedent, which requires a restrictive interpretation when the state wants to use punitive powers like forfeiture.
His conclusion was straightforward and honest:
Cryptocurrency is not legal tender in South Africa. It is not “foreign currency” in any ordinary sense. It exists as entries on a global, decentralised ledger. Treating it as “money” under the old definitions required a strained, impractical reading. If it were money, the practical consequences (attaching wallets under Regulation 22B, for example) quickly become absurd. He also noted that SARB itself had publicly acknowledged a regulatory vacuum around crypto.
Motha didn’t say Bitcoin is worthless or that people shouldn’t use it. He said the 1961 regulations, as written, don’t stretch to cover it. If the state wants to regulate or tax these flows differently, Parliament and National Treasury need to do the work. Courts shouldn’t rewrite old laws via creative interpretation just because a regulator wants more power.
That’s called separation of powers. It used to be popular around here.
What Wilson Did Differently
In the Mangundhla case, the facts were similar in spirit – Bitcoin bought with Rand in South Africa and moved to foreign-hosted wallets. SARB forfeited roughly R6 million worth.
Judge Wilson took a much broader, purposive approach. He looked at what Bitcoin does in the real world: people trade it for Rand, merchants accept it, it holds value over time, and moving it offshore removes that value from the South African system. Therefore, he said, it functions as both a medium of exchange and a store of value. It is “clearly money.” It is also capital because it is a financial asset capable of holding value.
He dismissed Motha’s focus on the technological and decentralised nature of Bitcoin as “a degree of magical thinking.” The export happens, in his view, the moment the Bitcoin is credited to wallets on foreign exchanges. End of story. Forfeiture upheld. Costs on the C scale.
It’s a clean, policy-driven judgment. It gives SARB exactly the tool it wants to police large cross-border crypto movements without waiting for new legislation.
The Optics
It is impossible to ignore the backgrounds of the two judges when reading these judgments side by side. Judge Motha is a lifelong Sowetan, born and bred in South Africa, who rose through the ranks as an attorney, lecturer, and community-rooted lawyer before his elevation to the bench in 2023. Judge Wilson, by contrast, was born and raised in Burnley in the north of England, came to South Africa as a volunteer in 1999, and built a distinguished career as a human rights advocate and academic at Wits before his appointment in early 2023. One is steeped in the lived reality of post-apartheid South Africa from the ground up; the other brings the perspective of someone who chose this country and has spent his professional life fighting for constitutional rights within it.
This contrast inevitably raises questions about political optics in a judiciary that remains highly sensitive to issues of transformation, representation, and the “Africanisation” of the law. Does a British-born judge’s willingness to expansively reinterpret 1961 regulations to give the state broader powers over citizens’ property sit more comfortably with certain narratives than a black South African judge’s insistence that courts should not fill legislative gaps? Or is the difference simply one of judicial philosophy – textualism and separation of powers versus purposive, policy-driven interpretation? In a country where every high-profile judgment is scrutinised through the lens of race and politics, these questions will linger until the SCA provides clarity that transcends individual judges.
The Current Position (It’s a Mess)
Right now we have:
- One High Court judgment (Motha) saying crypto is outside the Exchange Control net – suspended pending SCA appeal by SARB.
- A brand new contradictory judgment (Wilson) saying it is squarely inside that net.
- No binding precedent at SCA level.
- SARB FinSurv officers who don’t know which judge to quote on any given day.
- Crypto users, exchanges, and self-custody holders sitting in legal limbo.
This is not a stable or dignified situation for a country that likes to pretend it has a functioning legal system. Two judges in the same division reaching opposite conclusions on the same legal question within a year is exactly the kind of thing that makes serious capital (digital or otherwise) look elsewhere.
Why We Have to Wait for the Supreme Court of Appeal
High Court judgments don’t bind other High Court judges in different seats (Pretoria vs Johannesburg). Only the SCA (and ultimately the Constitutional Court on bigger constitutional questions) can give us a single, binding answer that every lower court and every SARB official must follow.
The SCA will also have to grapple with bigger issues:
- How do you interpret 1961 regulations written for a completely different technological and monetary reality?
- What does “export of capital” actually mean when the thing being moved is decentralised, borderless, and can be held in self-custody anywhere on earth with a seed phrase?
- Property rights under section 25 of the Constitution – can the state forfeit Bitcoin (or the Rand value it represents) using old rules that never contemplated it?
- Separation of powers – how far can a court stretch old legislation before it crosses into making new law?
These are not small questions. They go to the heart of how a constitutional democracy handles technological change and state power over private property.
Possible SCA Outcomes
1. SCA upholds Motha (crypto is not money/capital under current regs)
This is the cleaner legal outcome. It forces SARB and Treasury to go back to Parliament for proper, modern legislation (or they just change the rules as they like without having to go to parliament – Yes, they can actually do this). It respects the text and history of the 1961 rules. It avoids turning every self-custodied Bitcoin holder into a potential exchange control target. SARB will hate it and will immediately push for new regulations. Bitcoin adoption in South Africa breathes easier – at least until the new law arrives.
2. SCA upholds Wilson / reverses Motha
Crypto becomes “capital” and “money” for exchange control purposes. SARB gets broad power to demand approvals for large movements and to forfeit more easily. This will drive serious volume underground or offshore (Lightning, self-custody, non-custodial tools, foreign exchanges that don’t care about SA rules). It creates a massive enforcement headache because Bitcoin doesn’t sit in a bank account you can just freeze. It also chills ordinary South Africans trying to protect savings from Rand depreciation. Bad for adoption, bad for innovation, great for SARB’s empire.
3. Narrower, fact-specific ruling
The SCA could uphold the forfeiture in Mangundhla on the specific facts (large, repeated, structured flows that looked like capital flight) without declaring Bitcoin “money” in the abstract for all purposes. This would be the most pragmatic middle path – but it might leave the underlying legal uncertainty intact for everyone else.
4. Constitutional curveball
If property rights or the rule of law arguments land hard, the SCA (or ConCourt on further appeal) could strike down parts of the forfeiture regime as applied to crypto or require clearer legislative authority. Unlikely to be the headline outcome, but not impossible.
Why Bitcoin Is Not “Money” (And Why Wilson’s Approach Creates Real Problems)
Bitcoin was designed as sound money precisely because it is not the kind of money central banks and governments have historically controlled, inflated, and used to trap capital inside borders. It has no issuer. Fixed supply. Verifiable scarcity. Voluntary acceptance. It behaves more like digital gold or a bearer commodity than like Rand in a bank account.
Calling it “money” under 1961 exchange control rules is convenient for regulators who want to extend their reach, but it is legally and economically sloppy. It ignores why Bitcoin exists and what problem it solves for people living under weak currencies and capital controls.
Judge Wilson’s ruling creates several practical and principled problems:
- It hands SARB a powerful, blunt instrument without clear legislative guardrails. Forfeiture is punitive. Broad interpretations of old laws tend to expand, not contract.
- Enforcement will be selective and messy. Self-custody Bitcoin doesn’t live in a Luno account. The people SARB can actually catch are often the ones using on-ramps and off-ramps – exactly the people who were trying to stay inside the system.
- It adds more uncertainty on top of an already uncertain Rand and economy. South Africans already have every reason to diversify savings. Making that harder through judicial expansion of old rules is not helpful.
- It weakens the rule of law. When two High Court judges in the same week can reach opposite conclusions on something this fundamental, confidence erodes. Capital (human and digital) notices.
Motha’s judgment wasn’t perfect, but it had the virtue of intellectual honesty: the old rules don’t fit this new asset class. If the state wants different rules, it should write them properly instead of asking judges to retrofit 1961 legislation onto 2009 technology.
Bitcoin isn’t going away because a Johannesburg judge said it is “clearly money.” It survived worse. But South Africa’s reputation as a place where property rights are predictable and technological progress isn’t punished by regulatory overreach just took another hit.
We need the SCA to bring clarity. Preferably the kind that respects both the text of the law and the reality of what Bitcoin actually is.
Until then, South African Bitcoiners will keep doing what they’ve always done: stacking sats, self-custodying where possible, and treating every new regulatory pronouncement with the healthy scepticism it usually deserves.
Not your keys, not your coins. And apparently, not your judge either.