Khohliso v S and Another

Ms Nokhanyo Khohliso, a traditional healer in the Transkei, Eastern Cape, was convicted in the Tsolo Magistrates' Court of being in possession of two vulture's feet, which she intended to use to make traditional medicine against theft. She was sentenced to pay a fine of R4,000 or twelve months imprisonment, suspended for five years. The conviction was based on sections 13(c) and 84(13) of Decree 9 (Environmental Conservation) of 1992, issued by the President of the former Republic of Transkei on the advice of the Military Council. Section 13(c) prohibited possession of a carcass of a protected wild animal (vultures are protected). Section 84(13) appeared to create strict criminal liability without requiring intent and possibly excluded ignorance of the law as a defence. The Eastern Cape High Court, Mthatha overturned the conviction and declared section 84(13) inconsistent with the Constitution for violating the right to a fair trial and the presumption of innocence. It also declared section 13(c) unconstitutional for discriminating between people in different areas within the province, as the prohibition was stricter in the Transkei than in other parts of the Eastern Cape.

• Whether Decree 9 (Environmental Conservation) of 1992 (Transkei) has the status of a provincial Act or Act of Parliament for purposes of sections 167(5) and 172(2)(a) of the Constitution
• Whether it is necessary for the Constitutional Court to confirm the High Court's declaration of invalidity of pre-constitutional legislation not endorsed by a democratic Legislature
• What factors determine whether old-order legislation has the status of a provincial Act
• Whether sections 13(c) and 84(13) of Decree 9 are constitutional

1. The application for confirmation is dismissed. 2. There is no order as to costs.

Pre-constitutional legislation from the former TBVC states does not have the status of a provincial Act for purposes of sections 167(5) and 172(2)(a) of the Constitution unless it has been sufficiently endorsed or adopted by the post-1994 democratic Provincial Legislature. The determination of whether old-order legislation has been endorsed depends primarily on its treatment by post-1994 democratic Legislatures, with the most significant indicators being: (1) incorporation by reference into new-order legislation showing clear intention that all provisions be operable (not mere definitional reference); and (2) amendments that indicate contemplation and approval of remaining provisions, particularly where provisions are so interlinked that amendment of one necessarily involves consideration of others. Secondary considerations include the legislation's origin and territorial application. Assignment of executive powers and executive action taken under legislation are not relevant to determining its legislative status. The principle of comity underlying the confirmation requirement applies only to legislation enacted or endorsed by democratically elected bodies (Parliament, Provincial Legislatures, or the President), not to pre-constitutional legislation that has not been embraced by democratic institutions.

Van der Westhuizen J made several notable observations: (1) He commented on the historical context of the TBVC states as part of apartheid's "grand design" to strip black South Africans of citizenship and create nominally independent homelands. (2) He noted the oddity of having criminal law determined by decrees from military regimes in a constitutional democracy, describing all pre-1994 legislation as "born in constitutional sin" though recognized for practical necessity. (3) He observed that it is "rather odd" that 20 years into constitutional democracy, the statute book remains "cluttered by laws surviving from a bygone undemocratic era" and that this looks "even worse" when such laws determine criminal liability. (4) He stated that "people like Ms Khohliso and the rest of us – and indeed our much-valued vultures and other wildlife – deserve to be guided and protected by democratically elected Legislatures through clearer laws on a cleaner statute book." (5) He noted that while Decree 9 is not a provincial Act, it remains valid and applicable law in the Transkei under item 2 of Schedule 6 of the Constitution. (6) He clarified that the Constitutional Court can still hear matters concerning constitutionality of legislation that is not an Act of Parliament, provincial Act, or presidential conduct – for example, on appeal – just not by way of confirmation proceedings.

This case provides important guidance on determining the status of pre-constitutional legislation, particularly from the former TBVC states (Transkei, Bophuthatswana, Venda, and Ciskei). It clarifies when a High Court's declaration of invalidity requires Constitutional Court confirmation under sections 167(5) and 172(2)(a) of the Constitution. The judgment establishes that laws from the former homelands will rarely have the status of a provincial Act unless expressly embraced by post-democratic legislation. The case demonstrates the practical ongoing effect of apartheid-era legal structures and highlights the need for legislative rationalization and cleansing of the statute book. It reinforces that the principle of comity underlying the confirmation requirement is tied to respect for democratically elected law-making bodies, not undemocratic predecessors. The judgment also comments on the problematic continuation of laws from military dictatorships in a constitutional democracy and calls for clearer laws on a cleaner statute book.