Khohliso v the State and Another

• Jurisdiction: South Africa
• Judgment Date: 04 June 2014
• Citation: 2015 (1) SACR 319 (CC)

Khohliso v the State and Another
2015 (1) SACR 319 (CC)

2015 (1) SACR p319

Citation	2015 (1) SACR 319 (CC)
Case No	A 552/2013
Court	Constitutional Court
Judge	Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Leeuw AJ, Madlanga J, Nkabinde J, Van der Westhuizen J and Zondo J
Heard	May 27, 2014
Judgment	June 4, 2014
Counsel	L Crouse for the applicant, instructed by Legal Aid South Africa.; G Bloem SC (with P Kroon and D Young) for the second respondent (MEC for Economic Development, Tourism and Environmental Affairs, Eastern Cape).

Flynote : Sleutelwoorde

Environmental offences — Protected wild animal — Possession of carcass of — Contravention of s 13(c) of Environmental Conservation Decree 9 of 1992 (Transkei) — Although it was valid and applicable law in Transkei, Decree 9 had not been treated in manner by Eastern Cape legislature that amounted to endorsing it or recognising its status as that of C provincial Act — Confirmation of by Constitutional Court of declaration by high court of invalidity not required.

Headnote : Kopnota

The applicant, a traditional healer, had been convicted in a magistrates' court of D the possession of two vulture's feet in contravention of s 13(c) read with s 84(13) of the Environmental Conservation Decree 9 of 1992 (Transkei), and was sentenced to pay a fine of R4000 or to undergo 12 months' imprisonment, suspended for five years. It appeared that the applicant wished to mix a substance made from the feet with other ingredients to produce a remedy that protected against theft. The applicant appealed against her conviction to the high court which overturned the conviction E and declared s 84(13) inconsistent with the Constitution as the strict liability provided for by the section violated the presumption of innocence in s 35(3)(h) of the Constitution. Since the prohibition applicable in the Transkei is stricter than in other areas of the Eastern Cape, the court found that s 13(c) violated s 9 of the Constitution by discriminating between people in different areas within one province. The applicant approached the court in order to confirm the declaration of invalidity. F

Held, that Decree 9 had not been treated in a way by the Eastern Cape legislature that amounted to endorsing it or recognising its status as that of a provincial Act. It was also clearly not an Act of parliament. Although it was valid and applicable law in Transkei, this did not make it a provincial Act or an Act of parliament. Since Decree 9 was not a provincial Act, an Act of Parliament, or conduct of the President, the Constitutional Court did not G

2015 (1) SACR p320

A have to confirm the declaration of constitutional invalidity by the high court, which had immediate effect. (Paragraphs [46] at 336c, [47] at 336d and [51] at 336g.) The application was dismissed.

Cases cited

Biowatch Trust v Registrar, Genetic Resources and Others 2009 (6) SA 232 (CC) (2009 (10) BCLR 1014; [2009] ZACC 14): dictum in para [22] applied B

Gold Circle (Pty) Ltd and Another v Premier, KwaZulu-Natal 2005 (4) SA 402 (D): referred to

Hartland Implemente (Edms) Bpk v Enal Eiendomme BK en Andere 2002 (3) SA 653 (NC): referred to C

Industrial Development Corporation of SA (Pty) Ltd v Silver 2003 (1) SA 365 (SCA) ([2002] 4 All SA 316; [2002] ZASCA 112): referred to

Mdodana v Premier, Eastern Cape and Others 2014 (4) SA 99 (CC) (2014 (5) BCLR 533; D [2014] ZACC 7): referred to

Moses v Abinader 1951 (4) SA 537 (A): compared

Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC) (2000 (3) BCLR 241; [2000] ZACC 1): referred to

President of the Republic of South Africa and Others v South African Rugby Football Union and Others E 1999 (2) SA 14 (CC) (1999 (2) BCLR 175; [1998] ZACC 21): referred to

S v Coetzee and Others 1997 (1) SACR 379 (CC) (1997 (3) SA 527; 1997 (4) BCLR 437; [1997] ZACC 2): referred to

S v De Blom 1977 (3) SA 513 (A): referred to

S v Khohliso 2014 (2) SACR 49 (ECM): order of unconstitutionality in not confirmed F

Solicitor-General v Malgas 1918 AD 489: compared

Trust Bank of Africa Ltd v Cotton 1976 (4) SA 325 (N): compared

Van Wyk v Rottcher's Saw Mills (Pty) Ltd 1948 (1) SA 983 (A): compared

Weare and Another v Ndebele NO and Others 2009 (1) SA 600 (CC) (2009 (4) BCLR 370; [2008] ZACC 20): referred to G

Western Cape Provincial Government and Others: In re DVB Behuising (Pty) Ltd v North West Provincial Government and Another 2001 (1) SA 500 (CC) (2000 (4) BCLR 347; [2000] ZACC 2): compared

Zantsi v Council of State, Ciskei and Others 1995 (4) SA 615 (CC) (1995 (10) BCLR 1424; [1995] ZACC 9): dictum in para [35] applied.

Legislation cited

Statutes

The Constitution of the Republic of South Africa, ss 9 and 35(3)(h): see I Juta's Statutes of South Africa 2013/14 vol 5 at 1-27 and 1-30.

Decree H

The Environmental Conservation Decree 9 of 1992, ss 13(c) and 84(13).

Case Information

L Crouse for the applicant, instructed by Legal Aid South Africa.

G Bloem SC (with P Kroon and D Young) for the second respondent (MEC for Economic Development, Tourism and Environmental J Affairs, Eastern Cape).

2015 (1) SACR p321

An application for the confirmation of a declaration of invalidity of A s 13(c) read with s 84(13) of the Environmental Conservation Decree 9 of 1992 by the Eastern Cape High Court, Mthatha (Mjali J and Griffiths J).

Order B

(1)

The application is dismissed.

(2)

There is no order as to costs.

Judgment

Van der Westhuizen J (Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Leeuw AJ, Madlanga J, Nkabinde J and Zondo J concurring): C

Factual and legal background

[1] South Africa is an interesting country. Our people are diverse, culturally and otherwise; our history is brutal but fascinating; our wildlife is unique and precious. This court sometimes hears cases which would D rarely reach the highest courts of most other democracies. The facts and legal framework of this matter provide a kaleidoscopic illustration of how a mix of all the above can present a significant constitutional question.

[2] Ms Nokhanyo Khohliso, the applicant, is a traditional healer in the Transkei in the Eastern Cape Province. She was charged with and E convicted in the Tsolo Magistrates' Court of being in possession of two vulture's feet. She wanted to mix a substance made from the feet with other ingredients to produce a much-needed remedy in our land, namely medicine that protects against theft. Ms Khohliso was sentenced to pay a fine of R4000, or to 12 months' imprisonment, suspended for five years. F

[3] Possession of vultures' feet is a criminal offence under Decree 9 [1] F issued on 24 July 1992 by the President of the Republic of Transkei. The president did so on the advice of the territory's Military Council.

[4] A decree issued by a military regime as part of the criminal law of a G constitutional democracy? About this, one may well wonder in disbelief, similar to asking: 'A tiger in Africa?' [2] A quick look at history explains the apparent anomaly.

[5] One of the cornerstones of apartheid policy was the 'grand design' of former Prime Minister HF Verwoerd and his advisors which turned rural H areas where many black people resided into 'homelands'. These were destined to become fully 'independent states'. The ultimate goal was for all black people to lose their South African citizenship and become citizens of the new states, to which they had to return to live and exercise

2015 (1) SACR p322

Van der Westhuizen J (Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Leeuw AJ, Madlanga J, Nkabinde J and Zondo J concurring)

A their political rights. From the homelands they would have to commute to their work on the farms and in the industries and homes of 'white' South Africa.

[6] Some of those in power in these areas opted to embrace the system and accept the benefits that followed. In 1976 the Transkei obtained full B 'independence' and a president and prime minister were sworn in, [3] but South Africa was the only country in the world to recognise the new 'Republic'. Later the Ciskei — also located in the Eastern Cape — and other areas followed. But 'democratic' rule in some of the new republics did not last long. In 1987 a military coup took place in the Transkei. The C president was empowered to rule by decree and his executive and legislative authority had to be exercised on the advice of the Military Council. [4] Similar events took place in the Ciskei. [5]

[7] When the interim Constitution came into force in 1994 and the final Constitution in 1997, the former homelands were accepted as part D of one united, democratic South Africa. In the interest of legal certainty — given the different applicable laws in the homelands and other parts of South Africa — the final Constitution provided that any law in force when the new Constitution took effect remained in force as long as it was consistent with the Constitution and had not been repealed or E amended. [6]

[8] Decree 9 deals with the conservation of indigenous fauna, flora and the environment in the Transkei. Ms Khohliso was convicted under ss 13(c) and 84(13) of the Decree. [7] Section 13(c) prohibits the possession of a carcass of a protected wild animal. [8] Vultures are protected wild F animals.

[9] The military rulers must have felt strongly about the protection of vultures and other wildlife in their republic. Section 84(13) seems to create strict criminal liability, without the element of intent usually required in criminal law and may also exclude ignorance of the law as a G defence. [9] Ms Khohliso and others in her position would thus be guilty of

2015 (1) SACR p323

Van der...