Nokhanyo Khohliso, a traditional healer from Tsolo in the former Transkei, was convicted by the Tsolo Magistrate’ Court of possession of a pair of vulture feet in contravention of section 13 and section 84 of Republic of the Transkei’s Decree No 9 of 1992.
She successfully appealed her conviction in the Eastern Cape High Court.
In December last year, the high court held that the provisions are unconstitutional and invalid because they are inconsistent with the rights to equality, dignity and a fair trial.
Khohliso approached the Constitutional Court to confirm the high court’s ruling of constitutional invalidity, which requires that the Constitutional Court confirm any order of invalidity of a provincial act made by a high court.
Khohliso maintains that sections 13 and 84 of Decree No. 9 are unconstitutional on two grounds.
The first is that they violate the right to equality before the law by distinguishing unjustifiably between the people of the former Transkei and the people of the rest of the Eastern Cape. This was because the people in the former Transkei can legally possess fewer animal carcasses and face harsher sanctions than people in the rest of the Eastern Cape.
She also argues that section 84 creates strict liability which violates her right to a fair trial.
No appeal was lodged against the high court’s ruling.
However, the respondent, the Eastern Cape MEC for Economic Development, Tourism and Environmental Affairs contends that the Constitutional Court does not have to confirm the declaration of invalidity because the decree does not constitute a provincial act.
The MEC submits that although Parliament and the provincial legislature have considered the decree to some extent, the fact that it has not been directly pronounced upon or assimilated into a provincial Act means that it is neither an Act of Parliament, nor a provincial Act.
In addition, the MEC noted that as the decree has only been enforced in the territory of the former Transkei, it does not have the territorially binding effect of a provincial act.
According to the MEC, the Constitutional Court thus lacks jurisdiction to confirm the high court’s order of unconstitutionality and therefore the order of the high court is already of full force and in effect.
Khohliso argues that the decree is a provincial act for the purposes of section 167 of the Constitution and that the Constitutional Court does have jurisdiction to hear the confirmation proceedings.