Khohliso v S and Another

The applicant, Ms Nokhanyo Khohliso, a traditional healer in the Transkei region of the Eastern Cape, was convicted in the Tsolo Magistrates’ Court for possessing two vulture’s feet, which she intended to use for traditional medicine. Possession of vulture parts was criminalised under Decree 9 (Environmental Conservation) of 1992, issued by the President of the former Republic of Transkei during military rule. She was fined R4 000 or sentenced to 12 months’ imprisonment, suspended. On appeal, the Eastern Cape Local Division of the High Court overturned her conviction and declared sections 13(c) and 84(13) of Decree 9 unconstitutional for violating the presumption of innocence and the right to equality. Ms Khohliso then approached the Constitutional Court seeking confirmation of the High Court’s declaration of invalidity.

The application for confirmation of the High Court’s declaration of invalidity was dismissed. No order as to costs was made.

The case clarifies the Constitutional Court’s confirmation jurisdiction over declarations of invalidity concerning pre-1994 homeland legislation. It establishes an important framework for determining when old-order laws are to be treated as provincial Acts, providing guidance on legal certainty, comity, and the status of apartheid-era and homeland legislation still in force.