Recent Case: Constitutional aspects of criminal justice

• Jurisdiction: South Africa
• Author: Warren Freedman
• Citation: (2016) 29 SACJ 207
• Date: 24 May 2019
• Published date: 24 May 2019
• Pages: 207-223

Constitutional aspects of criminal

justice

WARREN FREEDMAN

University of KwaZulu-Natal

1 Jurisdiction

1.1 Introduction

Section 167(5) of the Constitution of the Republic of South Africa

1996 (‘the Constitution’) provides that the Constitutional Cour t must

conrm any order of invalidit y made by a high court in respect of an

Act of Parliament, a provincial Act or conduct of the President, before

that order has any force, and s 172(2)(a) provides that such an order

has no force unless it is conrmed by the Const itutional Court. These

provisions give rise to complex and difcult questions. One of these

is whether old-order legislation passed by the erstwh ile provincial

councils, self-governing homelands and/or ‘TBVC states’ (the Transkei,

Bophuthatswana, Venda and Ciskei) may be classied as provincial

Acts.

This question has been considered by the Con stitutional Court on

three occasions. In its rst t wo judgments the court had to determ ine

whether a provincial Ordinance could be classi ed as a provincial Act

(see Weare v Ndebele NO 2009 (1) SA 600 (CC), where the court held that

it could, and Mdodana v Premier, Easte rn Cape 2014 (4) SA 99 (CC),

where the court held that it could not). In its most recent judgment,

however, the Constitutional Court had to determine whether a decree

issued by the President of the Republic of Transkei on the advice of the

military cou ncil could be classied as a provincial Act (see Khohliso v

S 2015 (1) SACR 319 (CC)).

Apart from remindi ng us of South Africa’s chequered history, the

judgment in Khohlis o is interesting because it deepe ns the Constitutional

Court’s ss 167(5) and 172(2) (a) jurisprudence by rank ing the indicators

that may be taken into account when determini ng the status of old-

order legislation in order of priority and by clari fying the status of

TBVC legislation insofar as ss 167 (5) and 172(2)(a) are concerned.

1.2 The facts

The accused, a traditional hea ler, was charged and convicted in

the magistrate’s court under ss 13(c) and 84(13) of the Transkei

Environmental Conser vation Decree 9 of 1992 (‘Decree 9’) for being in

Recent Cases 207

(2016) 29 SACJ 207

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possession of two vulture’s feet. Section 13(c) prohibited the possession

of the carcass of a protected wild an imal (which included vultures),

while s 84(13) prohibited an accused from raising the absence of mens

rea as a defence to any of the offences created by the Decree.

Following her conviction and sentencing, the accused appealed to

the Eastern Cape High Court i n Mthatha against her conviction. T he

high court upheld the appeal and set aside the accused’s conviction on

two grounds: rst, that s 84 (13) unjustiably in fringed the right to be

presumed innocent until proven guilt y guaranteed in s 35(3)(h) of the

Constitution; and, second, that s 13(c) unjustiably infringed the r ight

not to be unfairly discri minated against gua ranteed in s 9(3); these

sections were therefore unconstitutional and invalid.

Section 84(13) of Decree 9 infringed the right to a fair tr ial, the high

court held, because it imposed stric t liability on the accused, whi le

s 13(c) infringed the right to equality because t he prohibition in one

part of the Eastern Cape, namely t he erstwhile Transkei, was much

stricter than the prohibition i n the rest of the Eastern Cape and thus

unfairly discri minated against persons i n different parts of t he same

province (the possession of the carcass of a protected wild anima l

in the rest of the Eastern Cape were prohibited by the Nature a nd

Conservation Ordinance 19 of 1974 and the Ciskei Nature Conservation

Act 7 of 1976).

After the high cour t declared ss 13(c) and 84(13) of Decree 9 to

be unconstitutional and thus inval id, it referred its decision to the

Constitutional Cour t for conrmation in terms of ss 167(5) and 172(2)

(a) of the Constitution. The key question that the Constitutional Cour t

had to answer was whether it was necessary for it to conr m the

high court’s declaration of invalidity. In order to answer thi s question,

however, the court had to determine whether Decree 9 could be

classied as a provincial Act.

1.3 The judgment

The Constitutional Cour t (per Van der Westhuizen J; Mogoeng CJ;

Moseneke DCJ; Cameron, Froneman, Jafta, Khampepe, Mad langa,

Nkabinda and Zondo JJ; and Leeuw AJ concurri ng) held that Decree

9 could not be classied as a provincial Act and, consequently, that it

was unnecessary for it to conr m the high court’s decision.

In arriving at thi s decision, the Constitutional Cour t began by stating

that the purpose behi nd ss 167(5) and 172(2)(a) is to promote comity

between the legislative, executive and judicial branches of the state

by requiring the principle judicial organ of st ate to conrm orders

invalidating the law-making decisions and conduct of t he principle

legislative and executive organs of state. The fact that orders of

208 SACJ . (2016) 2

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