PROTECTION AGAINST THEFT

A traditional healer wished to mix a substance made from the feet of a vulture with other ingredients to produce a remedy that protected against theft. She was however charged with an invalid law and walked free. See

KHOHLISO v THE STATE AND ANOTHER 2015 (1) SACR 319 (CC)

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 provincial Act — Confirmation of by Constitutional Court of declaration by high court of invalidity not required.
The applicant, a traditional healer, had been convicted in a magistrates’ court of 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 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.
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 have to confirm the declaration of constitutional invalidity by the high court, which had immediate effect. The application was dismissed. See Legal-Notes-Vol-5-2015

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