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[2013] ZAECMHC 36
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Khohliso v S (86/2011, A790/10) [2013] ZAECMHC 36; 2014 (2) SACR 49 (ECM) (12 December 2013)
IN THE HIGH COURT
OF SOUTH AFRICA
EASTERN CAPE HIGH
COURT : MTHATHA
Case
No: 86/2011
DATE:
12 DECEMBER 2013
(ex Tsolo
Magistrates Court A790/10)
NOKHANYO
KHOHLISO
..................................................................................
Appellant
versus
THE
STATE
................................................................................................
1st
Respondent
THE MEC, ECONOMIC
DEVELOPMENT,
TOURISM AND
ENVIRONMENTAL AFFAIRS
..................................
.nd
Respondent
APPEAL JUDGMENT
MJALI, J:
[1] The appellant
who is a traditional healer was convicted in the Magistrate’s
Court, Tsolo, on a charge of possession of
two vulture’s feet
in contravention of section 13(c) read with section 84(13) of Decree
No 9 of 1992 (“the Decree”)
which was promulgated by the
then President of the Republic of Transkei on 24 July 1992 and came
into operation on 1 January 1993.
She was sentenced to pay a fine
R4000.00 or in default thereof to undergo to 12 months imprisonment
which was wholly suspended
for a period of five years on condition
that she is not convicted of contravention of sections 13(c),
84,1,2,3 and 4 of the Environmental
Conservation Decree No. 9 of
1992. With the leave of the court a quo, the appellant has appealed
to this court against her conviction
only. In essence the appeal is
directed against the constitutional validity of sections 13(c) and
84(13) of the said Decree.
[2] The Decree was
promulgated at the time when the Transkei was still a sovereign
independent State and continues to apply only
in the erstwhile
Transkei area even after almost two decades after the advent of our
Constitutional democracy have elapsed. With
the advent of our
democracy, Transkei was incorporated into South Africa as part of the
Eastern Cape Province. In the remainder
of the Eastern Cape Province
legislation known as the Nature and Environmental Conservation
Ordinance (No. 19 of 1974) (“the
Ordinance”) is
applicable. As will become apparent later in this judgment, there is
a considerable difference between what
is viewed as an offence in
terms of the aforementioned two forms of legislation.
[3] The appeal is
opposed by the state which is of the view that the appellant’s
conviction should stand and that the constitutional
issues raised in
the appeal are justified in terms of section 36 of the Constitution,
which allows for the limitation of rights
contained in the bill of
rights under certain circumstances.
[4] In view of the
fact that the validity of certain sections of the Decree which are
still in force in the Transkei geographical
area of the Province of
the Eastern Cape is challenged, the MEC for Economic Development,
Tourism and Environmental Affairs, Eastern
Cape (who is responsible
for the administration of the Decree) was joined as a further party
in these proceedings. In the written
submissions and in argument
before us counsel for the MEC submitted that this appeal can be dealt
with without having to decide
the constitutional issues raised. Put
differently, it was argued that this court could simply uphold the
appeal purely on the basis
that the state failed to prove mens rea.
That being the case, it would not be necessary to decide on the
constitutional issues
raised. This approach would in my view be an
easy answer but would not deal with the real issues raised. The
challenged sections
would remain in force despite the constitutional
challenge raised against them.
[5] The salient
facts giving rise to the appellant’s conviction, briefly stated
are: On 20 February 2010 the appellant was
in her traditional
chemist together with a client when she was arrested for possession
of protected wild life carcass. She admitted
to being in possession
of two vulture’s feet and stated that it was her intention to
mix them with other substances in the
production of traditional
medicine to protect her clients against theft. It was common cause
that she had no permit to possess
the said feet. The appellant was
trained in 1994 as a traditional healer. As part of her training she
was taught to mix traditional
medicines using animal parts or birds.
She was never informed of the existence of any prohibition with
regard to possession of
certain species of animals or birds. As such
she was in no position to know of any prohibition in law pertaining
to possession
of certain kinds of animals or birds, or their
carcasses.
[6] Section 13(c) of
the said Decree provides that “no person shall, unless duly
authorised by the Minister acting on the
advice of the Council, sell,
buy, donate, receive as donation or be in possession of any carcass
of a protected wild animal”.
Ignorance of the law and lack of
intention to commit the crime are no defences as section 84(13)
creates strict liability and
stipulates that “it shall be no
defence in any prosecution for an offence in terms of the Decree that
the accused had no
knowledge of some fact or other or did not act
wilfully.”
[7] It was therefore
not necessary for the state to prove mens rea. No evidence was led
and the appellant was convicted on her plea.
It is common cause that
Vultures are protected species and possession of any part thereof
constitutes an offence in terms of section
13(c) of the Decree.
[8] In a multi
pronged approach the appellant challenges her conviction on the
constitutional validity of said sections which in
effect create
inequality between the persons of the former Transkei and the rest of
the Eastern Cape. Before us Counsel for the
appellant argued that in
areas where the Ordinance applies the appellant would have been
prosecuted for possession of a carcass
of what is defined therein as
an “endangered species” instead. Such "endangered
species" as defined in the
Ordinance are species which are rare
compared with “protected wild animal”, as defined in the
Decree. In this regard,
a "protected wild animal" is
defined in the Decree as "any wild animal of the species
mentioned in Schedule 1".
Schedule 1 to the Decree, in turn, and
under the heading "Birds", specifies all species except for
a relatively limited
number of prolific species. She has argued
further that the Ordinance does not create strict liability in the
same manner as does
the Decree. Accordingly, in a prosecution under
the Ordinance more would be required from the state to secure a
conviction for
a similar offence in terms of the Ordinance than in a
prosecution under the Decree.
[9] A further
contention on behalf of the appellant is that had the magistrate not
misconstrued her ability to enquire into the
constitutional validity
of the Decree, the appellant would not have been convicted of the
offence. For this contention counsel
for the appellant seems to have
relied on the provisions of section 170 of the Constitution. In terms
of that section: “Magistrates’
Courts and all other
courts may decide any matter determined by an Act of Parliament, but
a court of a status lower than a High
Court may not enquire into or
rule on the constitutionality of any legislation or any conduct of
the President”.
[10] Counsel for the
appellant argued that the Decree promulgated by the President of the
then Republic of Transkei is not an Act
of Parliament in the context
of the Constitution as it was promulgated prior to the commencement
of our interim constitution.
For this reason, she argued that the
Magistrate’s Court has the power to enquire into the
Constitutionality thereof.
[11] This contention
can be dealt with swiftly. First, the Decree is a piece of
legislation that was promulgated by a competent
authority at the
time. Despite the cessation of the Republic of Transkei as an
independent State, the Decree remained in force
by virtue of section
229 of the Interim Constitution (No. 200 of 1993) in the geographical
area where it previously found application.
In terms of the
provisions of section 235(8) of the Interim Constitution, the
administration of certain sections of the Decree
were assigned to the
Department of Economic Affairs, Environment and Tourism of the
Eastern Cape Province. In Barnett and Others
v Minister of Land
Affairs and Others
(2007 (11) BCLR 1214
(SCA)), reliance on certain
sections of this Decree was upheld by the Supreme Court of Appeal.
[12] Secondly, the
Magistrates' Courts are creatures of statute. In terms of Section
110(1) of the Magistrates' Courts Act (No.
32 of 1944), Magistrates’
Courts shall not be competent to pronounce on the validity of any law
and shall assume that every
law is valid. Apart from this, section
170 of the Constitution prohibits any enquiry into or ruling by the
Magistrates' Court on
the constitutional validity of any Act. For
these reasons the court a quo cannot be faulted for its refusal to
pronounce on the
constitutional validity of sections 13(c) and 84(13)
of the Decree. This finding does not in any way detract from the fact
that
the issue of the validity of the aforementioned sections must be
considered.
[13] On the issue of
constitutional validity, counsel for the appellant contended that
section 13(c) is in conflict with the rights
to equality and dignity
postulated in sections 9 and 10 of the Constitution. She argued
further that section 84(13) is in conflict
with the right to a fair
trial, in particular the right to be presumed innocent until proven
guilty.
[14] The specific
protection provided by the Constitution for equality is found in
section 9 which states:
“1. Everyone
is equal before the law and has the right to equal protection and
benefit of the law.
2. Equality includes
the full and equal enjoyment of all rights and freedoms. To promote
the achievement of equality, legislative
and other measures designed
to protect and advance persons, or categories of persons,
disadvantaged by unfair discrimination may
be taken.
3. The State may not
unfairly discriminate directly or indirectly against anyone on one or
more grounds, including race, gender,
sex, pregnancy, marital status,
ethnic or social origin, colour, sexual orientation, age, disability,
religion, conscience, belief,
culture, language or birth.
4. No person may
unfairly discriminate directly or indirectly against anyone on one or
more grounds in terms of subsection (3).
National legislation must be
enacted to prevent or prohibit unfair discrimination.
5. Discrimination on
one or more of the grounds listed in subsection (3) is unfair unless
it is established that the discrimination
is fair.”
[15] Section 10
provides that everyone has inherent dignity and the right to have
that dignity respected and protected. As stated
earlier in this
judgment, there are two pieces of legislation in the same province
dealing with the same subject matter, namely
nature conservation, but
differing in their territorial application, definitions and the
standard of proof that is required to
found a conviction. For
example, the Decree finds application in the territorial area
formerly known as the Transkei. In the rest
of the same province as
well the rest of South Africa the Ordinance, with different
implications, is in force. This then calls
for a determination as to
whether or not unfair discrimination has resulted from this state of
affairs.
[16] In doing so a
two stage enquiry set out by Golstone J in Harksen v Lane NO and
others13
[1997] ZACC 12
;
(1998 (1) SA 300
(CC) at paragraph 54) must be applied. In
that matter the court stated:
“At the cost
of repetition, it may be as well to tabulate the stages of enquiry
which become necessary when an attack is
made on the provision in
reliance on s 8 of the interim Constitution. They are:
(a) Does the
provision differentiate between people or categories of people? If
so, does the differentiation bear a rational connection
to a
legitimate government purpose? If it does not then there is a
violation of s 8(1). Even if it does bear a rational connection,
it
might nevertheless amount to discrimination.
(b) Does the
differentiation amount to unfair discrimination? This requires a
two-stage analysis:
(i) Firstly, does
the differentiation amount to ‘discrimination’? If it is
on a specified ground, then discrimination
will have been
established. If it is not on a specified ground, then whether or not
there is discrimination will depend upon whether,
objectively, the
ground is based on attributes and characteristics which have the
potential to impair the fundamental human dignity
of persons as human
beings or to affect them adversely in a comparably serious manner.
(ii) If the
differentiation amounts to ‘discrimination’, does it
amount to ‘unfair discrimination’? If it
has been found
to have been on a specified ground, then unfairness will be presumed.
If on an unspecified ground, unfairness will
have to be established
by the complainant. The test of unfairness focuses primarily on the
impact of the discrimination on the
complainant and others in his
or her situation. If, at the end of this stage of the enquiry, the
differentiation is found not
to be unfair, then there will be no
violation of s 8(2).
(c) If the
discrimination is found to be unfair then a determination will have
to be made as to whether the provision can be justified
under the
limitations clause (s 33 of the interim Constitution).”
[17] Applying the
aforementioned enquiry to this case, I have no doubt in my mind that
the provisions of sections 13(c) and 84(13)
of the Decree
differentiate between people living in the former Transkei area and
those living in the rest of the Eastern Cape
Province. Both counsel
for the state and for the MEC did not try to convince this court that
such differentiation bore any rational
connection to a legitimate
government purpose. In fact counsel for the MEC sought to avoid
dealing with the constitutional issues
raised on the basis that the
Department is aware of the anomalies that exist as a result of the
different pieces of legislation
in existence within the Province,
this Decree being one of them, and that the Department is in the
process of correcting such anomalies.
That being the case there can
be no doubt but that the differentiation between people in the former
Transkei area and the rest
of the Eastern Cape bears no rational
connection to a legitimate government purpose. It therefore amounts
to unfair discrimination
which cannot be justified under the
provisions of section 36 of the Constitution. For the aforementioned
reasons I have no difficulty
in finding that the provisions of
sections 13(c) and 84(13) of the Decree offend against the provisions
of sections 9 and 10 of
the Constitution. The conviction of the
appellant thus falls to be dismissed on this ground. In President of
the Republic of South
Africa v Hugo
(1997 (4) SA 1
(CC) at paragraph
41) Goldstone J said:
“At the heart
of the prohibition of unfair discrimination lies a recognition that
the purpose of our new constitutional and
democratic order is the
establishment of a society in which all human beings will be accorded
equal dignity and respect regardless
of their membership of
particular groups. The achievement of such a society in the context
of our deeply inegalitarian past will
not be easy, but that that is
the goal of the Constitution should not be forgotten or overlooked.”
[18] Even if I am
wrong in my finding that the provisions of sections 13(c) and 84(13)
offend against the Constitution on the above-mentioned
the basis, the
conviction of the appellant falls to be dismissed on another ground,
namely that the strict liability created by
section 84(13) of the
Decree erodes her right to a fair trial and in particular her right
to be presumed innocent until proven
guilty. As such it
unjustifiably infringes the right to be presumed innocent contained
in s 35(3)(h) of the Constitution of the
Republic of SA, 1996. No
attempt was made by the state or the MEC to prove that the
presumption of guilt created by section 84(13)
is necessary if
certain offences are to be effectively prosecuted in terms of the
Decree. No good reason has been advanced by the
prosecution to show
that it cannot be expected to produce the evidence itself. It is
trite that in criminal matters it is incumbent
upon the prosecution
to aver and prove its entire case, including the element of mens rea,
against the accused beyond reasonable
doubt. Our courts have
repeatedly emphasised that the presumption of innocence is a
fundamental principle of our law. In S v Zuma
[1995] ZACC 1
;
(1995 (2) SA 642
(CC);
1995 (4) BCLR 401
(SA) at paragraph 33), the court held that the
presumption of innocence is not new to our legal system. As early as
1883, in R
v Benjamin
3 EDC 337
at 338, Buchanan J noted that:
“But in a
criminal trial there is a presumption of innocence in favour of the
accused, which must be rebutted. Therefore there
should not be a
conviction unless the crime charged has been clearly proved to have
been committed by the accused. Where the evidence
is not reasonably
inconsistent with the prisoner’s innocence, or where a
reasonable doubt as to his guilt exists, there
should be an
acquittal.”
[19] These remarks
are equally apposite to this matter.
[20] Not only does
this subsection offend against an accused's right to a fair trial,
its applicability in the geographical area
of the former Transkei
results in further unfair discrimination in that those citizens of
the Eastern Cape who do not reside in
the area of the former
Transkei, will not, in a criminal prosecution pursuant to the
Ordinance, be subject to such strict liability,
whereas those that
do, will.
[21] In an affidavit
delivered subsequent to the hearing of this matter on behalf of the
second respondent, it is stated that a
process of rationalization of
all environmentally related legislation in the province is at present
being undertaken. The deponent
to that affidavit who is described as
the "General Manager: Environmental Affairs" stated therein
that as a consequence
of this he has, in consultation with the Head
of the Department, given instructions to the Department's law
enforcement officers
that persons who are alleged to have committed
breaches of the environmental laws in the Eastern Cape should
henceforth be prosecuted
in terms of national legislation and not in
terms of the Decree. In the circumstances, it appears that it is not
necessary to make
any further order which has the effect of staying
such prosecutions.
[22] It seems to me
that the mere declaration of invalidity will be sufficient without
more as the impugned sections ought to have
been repealed.
Accordingly such declaration will achieve the same result.
[23] In the result
the following order shall issue:
1. The appeal is
upheld. The conviction and sentence imposed on the appellant are set
aside.
2. Sections 13(c)
and 84(13) of Decree No 9 of 1992(Tkei) are inconsistent with
sections 9, 10 and 35 of the Constitution of the
Republic of South
Africa, 1996, and are thus declared to be invalid.
3. The matter is
referred to the Constitutional Court for confirmation in terms of
section 172(2)(a) of the Constitution, 1996.
G N Z MJALI
JUDGE OF THE HIGH
COURT
GRIFFITHS, J. : I
agree.
JUDGE OF THE HIGH
COURT
DELIVERED ON :12
DECEMBER 2013
COUNSEL FOR
APPELLANT : Adv. L. Crouse
INSTRUCTED
BY : The Legal Aid Board
COUNSEL FOR 1ST
RESPONDENT : Adv. E. Van Wyk
INSTRUCTED
BY :The Director of Public
: Prosecutions,
Mthatha
COUNSEL FOR 2ND
RESPONDENT : Adv. G. H. Bloem, SC
INSTRUCTED
BY : The State Attorney