Vulture feet case shows homeland laws still on books 20 years after freedom

03 December 2014 - 12:08 By Ernest Mabuza
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A vulture in the Kruger Park.
A vulture in the Kruger Park.
Image: Bruce Gorton

The Constitutional Court is concerned that, 20 years into democracy, laws from a bygone era remain to remind South Africans of oppression and discrimination.

On Tuesday, in a case involving possession of vulture feet, the court noted its unease that several laws remain in the former homelands that do not apply elsewhere in the country.

The court had been asked by an Eastern Cape traditional healer, who was found guilty of possessing vulture feet, to confirm that the 1992 Decree 9 (Environmental Conservation) was unconstitutional.

The decree only applied in the former Transkei area and differed from an ordinance that covers the rest of Eastern Cape, which – unlike the decree - allows for ignorance of the law or lack of intention to commit the crime of possessing vulture feet.

Nokhanyo Khohliso was convicted of being in possession of two vulture feet in the Tsolo Magistrate’s Court in 2010. She had wanted to mix a substance from the feet with other ingredients to make medicine to protect against theft.

Khohliso was sentenced to a fine of R4 000 or to 12 months’ imprisonment, suspended for five years.

When she successfully appealed against her conviction in the Mthatha high court last year, the court also declared the decree unconstitutional as it violated the right to a fair trial, particularly the presumption of innocence.

Khohliso approached the Constitutional Court to confirm the declaration of unconstitutionality, but in a unanimous judgment on Tuesday, Justice Johann van der Westhuizen dismissed the application, saying it was unnecessary.

The Constitution requires the court to confirm an order of invalidity made by the high court in respect of an Act of parliament, a provincial Act or conduct of the president. The decree did not fall under any of these categories and the high court’s declaration of invalidity thus had immediate effect.

“Since Decree 9 is not a provincial Act, an Act of Parliament, or conduct of the President, this Court does not have to confirm the declaration of constitutional invalidity by the High Court. That declaration had immediate effect.”

Van der Westhuizen said that, in determining whether a pre-democratic law constituted a provincial Act, the court had to consider how the relevant provincial legislature had treated it since 1994. If the law had been endorsed by the legislature, it would have the same status as a provincial Act.

The Eastern Cape Legislature had not treated the decree in a way that amounted to endorsing it or recognising its status as that of a provincial Act, he said.

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