The State v Kholekile Witness Thunzi and Siyabulela Mlonzi

This matter stemmed from a referral for confirmation of an order by the Eastern Cape High Court, Mthatha, which declared the 'applicability' of section 4 of the Dangerous Weapons Act (Transkei) 71 of 1968 unconstitutional on grounds of unfair discrimination against perpetrators of crime in the erstwhile Transkei who were subject to a harsher sentencing regime. During consideration, the Court identified parallel legislation regulating dangerous weapons in the former homelands of Venda, Bophuthatswana, and Ciskei. Unlike the Transkei Act, these Acts did not create differential sentencing regimes. By the time of the hearing, notices triggering operation of offending clauses providing for differential sentencing had been withdrawn, rendering the provisions non-operational. The Minister indicated that rationalisation had begun and necessary legislation would be introduced in the 2011 parliamentary programme.

• Do the provisions in item 2 of Schedule 6 to the Constitution impose a constitutional obligation on Parliament to rationalise the laws governing the use of dangerous weapons in the territories of the former TBVC states?
• Is Parliament in breach of this obligation by failing to establish a uniform system of law governing the use of dangerous weapons throughout South Africa?
• What order, if any, should the Court make if Parliament is in breach?
• Is the continued operation of the multiple Dangerous Weapons Acts unconstitutional and should these statutes be struck down on any other basis?
• Does the Court have exclusive jurisdiction under section 167(4)(e) to consider Parliament's obligations in relation to the impugned legislation?

The matter was postponed to Tuesday, 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 required to notify the Court by Tuesday, 8 November 2011 of the legislative steps taken to fulfill the undertaking to rationalise the laws that were the subject of the litigation.

Where Parliament accepts a constitutional obligation to rationalise old order legislation under Schedule 6 to the Constitution, and the executive provides a solemn undertaking with a specific timeline to effect such rationalisation, and where the impugned legislation is not presently operational and will not adversely affect any person, it is appropriate for the Constitutional Court to postpone the matter to allow Parliament to fulfill its undertaking rather than to make an immediate declaration of invalidity. The Court will exercise supervisory oversight by requiring the political branches to report on progress in fulfilling their constitutional obligations within a specified timeframe. This approach respects the separation of powers while ensuring accountability for the fulfillment of constitutional obligations.

Froneman J observed that this matter concerned only one aspect of the rationalisation of transitional measures in the Constitution. Given that the matter would be before Parliament, he stated: 'there is no reason not to expect that similar speedy consideration will be given to other laws that might owe their existence merely to the transition from the old to the new order.' This suggests a broader judicial expectation that Parliament should systematically address all outstanding rationalisation issues arising from the transitional provisions, not merely the specific legislation before the Court in this case. The judgment also alludes to the question of whether the constitutional rationale for retaining old order legislation was limited to facilitating an orderly transition, and whether the Constitution contemplates that such legislation could serve any other purpose beyond the transitional period.

This case is significant in South African constitutional jurisprudence as it addresses Parliament's constitutional obligations under the transitional provisions in Schedule 6 to the Constitution to rationalise old order legislation from the former TBVC (Transkei, Bophuthatswana, Venda and Ciskei) states. The case demonstrates the Court's approach to dealing with constitutional obligations where the political branches accept responsibility and provide undertakings to remedy the situation. It illustrates judicial restraint where separation of powers considerations favor allowing the legislature to perform its function, while maintaining supervisory oversight. The case also highlights the broader issue of incomplete rationalisation of apartheid-era legislation 16 years after the advent of constitutional democracy, suggesting systemic challenges in the transformation of South Africa's legal framework. The judgment emphasizes the need for uniformity in national legislation and the constitutional imperative to eliminate the fragmented legal legacy of the homeland system.