The State v Thunzi and Another

The matter arose from a referral to the Constitutional Court for confirmation of an order of the Eastern Cape High Court, Mthatha, which had declared the applicability of section 4 of the Dangerous Weapons Act 71 of 1968 (Transkei) unconstitutional. The High Court found that the Act created a harsher sentencing regime applicable only in the former Transkei, resulting in unfair discrimination against accused persons prosecuted there compared to the rest of South Africa. While considering the confirmation, the Constitutional Court became aware that similar parallel Dangerous Weapons legislation existed in other former homelands (Bophuthatswana, Venda and Ciskei). These statutes had been retained after 1994 under transitional constitutional arrangements, leading to non-uniform regulation of dangerous weapons across the Republic.

The matter was postponed to 29 November 2011. The Speaker of the National Assembly, the Chairperson of the National Council of Provinces, and the Minister for Justice and Constitutional Development were directed to file affidavits by 8 November 2011 setting out the legislative steps taken to rationalise the relevant Dangerous Weapons legislation.

The case is significant for clarifying Parliament’s constitutional obligation, under the transitional provisions of the Constitution, to rationalise and unify old-order legislation inherited from the former homelands. It highlights the Constitutional Court’s supervisory role over constitutional obligations of Parliament while demonstrating judicial restraint and deference to the legislative process when concrete steps toward compliance are underway.