Khohliso v The State and Another

Ms Nokhanyo Khohliso, a traditional healer in the Transkei in the Eastern Cape Province, was convicted in the Tsolo Magistrates' Court of being in possession of two vulture's feet under sections 13(c) and 84(13) of Decree 9 (Environmental Conservation) of 1992 of the former Republic of Transkei. She wanted to use the feet to produce traditional medicine to protect against theft. She was sentenced to a fine of R4,000 or twelve months imprisonment, suspended for five years. Decree 9 was issued on 24 July 1992 by the President of the Republic of Transkei on the advice of the Military Council. The Transkei was a former "homeland" that obtained "independence" in 1976 under apartheid policy, though only South Africa recognized this. A military coup occurred in the Transkei in 1987, after which the President ruled by Decree on advice of the Military Council. When the interim Constitution came into force in 1994, former homelands were accepted as part of South Africa and all law in force when the Constitution took effect remained in force unless inconsistent with the Constitution or subsequently repealed or amended. The Eastern Cape Local Division of the High Court (Mjali J) overturned Ms Khohliso's conviction, declaring section 84(13) inconsistent with the Constitution (specifically section 35(3)(h) - the presumption of innocence) and section 13(c) inconsistent with section 9 (equality) because it discriminated between people in different areas of the Eastern Cape where parallel legislation existed.

• Whether Decree 9 has the status of a provincial Act, Act of Parliament, or conduct of the President such that a High Court's declaration of its invalidity requires confirmation by the Constitutional Court under sections 167(5) and 172(2)(a) of the Constitution
• What criteria determine whether old-order (pre-1994) legislation has the status of a provincial Act
• Whether treatment of pre-constitutional legislation by post-1994 democratic legislatures amounts to endorsement sufficient to elevate its status
• The relevance of origin, territorial application, incorporation by reference, amendment, executive assignment and executive action in determining legislative status

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

Pre-1994 legislation enacted by former TBVC homeland governments does not have the status of a "provincial Act" requiring Constitutional Court confirmation of invalidity declarations under sections 167(5) and 172(2)(a) of the Constitution unless the post-1994 democratic Provincial Legislature has endorsed or taken legislative ownership of it. The primary consideration is treatment by the post-1994 Legislature, with origin and territorial application also relevant. Treatment amounts to endorsement where: (1) the legislation is incorporated by reference (showing clear intention to re-enact all provisions) into new legislation; or (2) the legislation is amended in a way indicating contemplation and approval of remaining provisions where provisions are so interlinked that amended sections cannot be dislocated from others. Mere reference for definitional purposes, executive action under the legislation, partial executive assignment, partial amendment creating separate regulatory schemes, and failed/abandoned amendments are insufficient to evidence endorsement. The purpose of the confirmation requirement is to promote comity by respecting the role of elected law-makers; where democratic legislatures have not endorsed pre-constitutional legislation, such comity considerations do not require Constitutional Court confirmation.

Van der Westhuizen J made several notable observations: (1) He opened by noting South Africa's diverse people, brutal but fascinating history, and unique wildlife, commenting that this Court sometimes hears cases rarely reaching highest courts of other democracies. (2) He provided historical context about apartheid's "grand design" of homelands, the Transkei's 1976 "independence" recognized only by South Africa, and the 1987 military coup. (3) He analogized the anomaly of a military decree as criminal law in a constitutional democracy to asking "A tiger in Africa?" - referencing Monty Python's exposure of ignorance about history and civilization. (4) He noted that all pre-1994 legislation was "born in constitutional sin" as democracy was the privilege of the white minority, but was preserved for practical reasons of legal certainty. (5) In closing, he expressed concern that 20 years into constitutional democracy, "we are left with a statute book cluttered by laws surviving from a bygone undemocratic era remembered for the oppression of people; the suppression of freedom; discrimination; division; attempts to break up our country; and military dictatorships." He stated: "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." This was a call for legislative reform to address outdated laws. (6) On costs, he applied Biowatch principles noting Ms Khohliso sought legal certainty of benefit in future cases, making this a rights-related dispute warranting no costs order.

This case provides important guidance on when pre-1994 legislation, particularly from former TBVC "homeland" states, has the status of a "provincial Act" requiring Constitutional Court confirmation of invalidity declarations. It establishes that treatment by post-1994 democratic legislatures is the primary consideration - whether they "took legislative ownership" through endorsement. The judgment clarifies that unless expressly embraced by post-democratic legislation, provincial laws from TBVC states will rarely have provincial Act status. It distinguishes between incorporation by reference (requiring intention to re-enact provisions) and mere reference, and establishes that executive action, partial assignment, and failed amendments are insufficient to evidence legislative endorsement. The case promotes legal certainty about confirmation requirements while calling for democratic legislatures to clean up the statute book by addressing outdated undemocratic-era laws. It affirms the Constitutional Court's supervisory role based on comity principles while limiting unnecessary confirmation proceedings for old-order legislation not endorsed by democratic bodies.