By Duncan Wild on 4 August 2014

This case concerns whether the High Court’s finding that sections 13(c) and 84(13) of the Environmental Conservation Decree No 9 of 1992 (“the Decree“) were unconstitutional. The Decree was promulgated by the then President of the Republic of the Transkei on 24 July 1992, when the Transkei was still a sovereign independent state. In the remainder of the Eastern Cape Province that Nature and Environmental Conservation Ordinance 19 of 1974 (“the Ordinance“) applies.  The Constitutional Court is faced with two questions: the first is a jurisdictional one, and depends upon whether the Decree is a provincial act, as if it is not provincial then the Constitution does not require the Constitutional Court to confirm its invalidity. The second question is whether the relevant sections of the Decree are unconstitutional in that they provide a different level of liability within the Transkei to the liability imposed under the Ordinance in the remainder of the Eastern Cape. 

Section 172 of the Constitution empowers the High Court and Supreme Court of Appeal to make a finding on the constitutional validity regarding “an Act of Parliament, a provincial Act or conduct of the President“, but that if a finding of invalidity is made then the Constitutional Court must confirm that finding before it will have any force.

The purpose of this section, as the Constitutional Court confirmed in Mdodana v Premier of the Eastern Cape and Others, is preserve the principle of separation of powers, by ensuring that highest court has final say on whether the conduct of the other spheres of government (the national and provincial legislatures, as well as the President) is constitutional.

The question then is whether the Decree, which only applies within the area of the former Transkei and where parallel legislation applies on the same subject in the rest of the province, amounts to provincial legislation and so whether the High Court’s finding of invalidity requires confirmation from the Constitutional Court.

If the Constitutional Court finds that the it is required to confirm the finding of constitutional invalidity it will turn to the merits of the case. Briefly, the facts of the case are that Ms Nokhanyo Khohliso, a traditional healer, was found in possession of two vulture’s feet, in 2010. Under the Decree it is an offence to be in possession of the carcass of “a protected wild animal” under section 13(c), and section 84(13) provides that “it shall be no defence in any prosecution for an offence in terms of the Decree that the accused had no knowledge of some fact or other or did not act wilfully.”  In other words, it is enough that a person has the prohibited material in their possession for the offence to be committed, and that the persons intention to commit a crime is not necessary, so called-strict liability.

Ms Khohliso was found guilty of the offence under the Decree in the Magistrate’s Court. However, she challenged the conviction in the High Court on the basis that the Decree was not constitutionally valid.  The argument was made that sections 13(c) and 84(13) infringed the rights to dignity, equality and a fair trial.

The High Court found that the Decree did differentiate between people living in the former Transkei and those living in the rest of the Eastern Cape (where the Ordinance applied, and which did not provide strict liability, and does not cover as wide a range of animals as the Decree).  The High Court also found that there was no rational government purpose that this differentiation served, and so on that basis the Decree was unconstitutional as a unjustified infringement of the right to equality.

In addition, the High Court found that section 84(13) of the Decree violated the right to a fair trial by unjustifiably infringing on a person’s right to be presumed innocent.

The Constitutional Court, if it finds it has jurisdiction to hear the matter, will have to determine whether the High Court was correct in its finding of constitutional invalidity.