About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2014
>>
[2014] ZACC 33
|
|
Khohliso v S and Another (CCT 12/14) [2014] ZACC 33; 2015 (2) BCLR 164 (CC); 2015 (1) SACR 319 (CC) (2 December 2014)
Links to summary
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 12/14
In
the matter between:
NOKHANYO
KHOHLISO
......................................................................................................
Applicant
and
THE
STATE
.....................................................................................................................
First
Respondent
MEMBER
OF THE EXECUTIVE COUNCIL FOR
ECONOMIC
DEVELOPMENT, TOURISM AND
ENVIRONMENTAL
AFFAIRS, EASTERN
CAPE
................................................
Second
Respondent
Neutral
citation:
Khohliso v S and Another
[2014] ZACC 33
Coram:
Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J,
Jafta J, Khampepe J, Leeuw AJ, Madlanga J, Nkabinde J,
Van der Westhuizen
J and Zondo J
Judgment:
Van der Westhuizen J (unanimous)
Heard
on:
21 August 2014
Decided
on:
2 December 2014
Summary:
Decree 9 (Environmental Conservation)
of 1992 (Transkei) —constitutional validity of sections 13(c)
and 84(13)
Sections
167(5) and 172(2)(a) of the Constitution — confirmation
jurisdiction — whether Decree has status of provincial
Act —
not necessary for this Court to confirm invalidity of
pre-constitutional legislation not endorsed by the Legislature
and
with parallel legislation on the same subject matter
ORDER
Application
for confirmation of the order of the Eastern Cape Local Division of
the High Court, Mthatha (Mjali J):
1.
The application is dismissed.
2.
There is no order as to costs.
JUDGMENT
VAN
DER WESTHUIZEN J (Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J,
Jafta J, Khampepe J, Leeuw AJ, Madlanga J, Nkabinde J and
Zondo J
concurring):
Factual
and legal background
[1]
South Africa is an interesting country.
Our people are diverse, culturally and otherwise; our history is
brutal but fascinating;
our wildlife is unique and precious.
This Court sometimes hears cases which would rarely reach the highest
courts of most
other democracies. The facts and legal framework
of this matter provide a kaleidoscopic illustration of how a mix of
all
the above can present a significant constitutional question.
[2]
Ms Nokhanyo Khohliso, the applicant, is a
traditional healer in the Transkei in the Eastern Cape Province.
She was charged
with and convicted in the Tsolo Magistrates’
Court of being in possession of two vulture’s feet. She
wanted
to mix a substance made from the feet with other ingredients
to produce a much needed remedy in our land, namely medicine that
protects against theft. Ms Khohliso was sentenced to pay a fine
of R4 000, or to twelve months imprisonment, suspended for
five
years.
[3]
Possession
of vulture’s feet is a criminal offence under Decree 9,
[1]
issued on 24 July 1992 by the President of the Republic of
Transkei. The President did so on the advice of the territory’s
Military Council.
[4]
A
decree issued by a military regime as part of the criminal law of a
constitutional democracy? About this, one may well wonder
in
disbelief similar to asking: “A tiger in Africa?”
[2]
A quick look at history explains the apparent anomaly.
[5]
One of the cornerstones of apartheid policy
was the “grand design” of former Prime Minister HF
Verwoerd and his advisors
which turned rural areas where many black
people resided into “homelands”. These were
destined to become fully
“independent states”. The
ultimate goal was for all black people to lose their South African
citizenship and
become citizens of the new states, to which they had
to return to live and exercise their political rights. From the
homelands
they would have to commute to their work on the farms and
in the industries and homes of “white” South Africa.
[6]
Some
of those in power in these areas opted to embrace the system and
accept the benefits that followed. In 1976 the Transkei
obtained full “independence” and a President and Prime
Minister were sworn in,
[3]
but
South Africa was the only country in the world to recognise the new
“Republic”. Later the Ciskei –
also located
in the Eastern Cape – and other areas followed. But
“democratic” rule in some of the new republics
did not
last long. In 1987 a military coup took place in the Transkei.
The President was empowered to rule by Decree
and his executive
and legislative authority had to be exercised on the advice of the
Military Council.
[4]
Similar events took place in the Ciskei.
[5]
[7]
When
the interim Constitution came into force in 1994 and the
final Constitution in 1997, the former homelands were accepted
as part of one united democratic South Africa. In the interest
of legal certainty – given the different applicable
laws in the
homelands and other parts of South Africa – the
final Constitution provided that any law in force when the
new
Constitution took effect remained in force as long as it was
consistent with the Constitution and had not been repealed or
amended.
[6]
[8]
Decree
9 deals with the conservation of indigenous fauna, flora and the
environment in the Transkei. Ms Khohliso was convicted
under
sections 13(c) and 84(13) of the Decree.
[7]
Section 13(c) prohibits the possession of a carcass of a
protected wild animal.
[8]
Vultures are protected wild animals.
[9]
The
military rulers must have felt strongly about the protection of
vultures and other wildlife in their republic. Section
84(13)
seems to create strict criminal liability, without the element of
intent usually required in criminal law and may also exclude
ignorance of the law as a defence.
[9]
Ms Khohliso and others in her position would thus be guilty of a
crime, regardless of whether they intended to possess vulture’s
feet, thought that these were chicken’s feet, or knew that it
was unlawful to possess them.
[10]
This is how the Eastern Cape Local Division of the High Court,
Mthatha interpreted the provision on appeal.
[10]
Thus
the High Court overturned Ms Khohliso’s conviction. It
declared section 84(13) inconsistent with the Constitution
since
it violated the right to a fair trial, particularly the presumption
of innocence in section 35(3)(h) of the Constitution.
[11]
Since the prohibition applicable in the Transkei is stricter than in
other areas of the Eastern Cape,
[12]
the Court found that section 13(c) violated section 9 of the
Constitution by discriminating between people in different areas
within one province.
[13]
Ms Khohliso approaches this Court to confirm the declaration of
invalidity.
[11]
Section
167(5) of the Constitution provides that the Constitutional Court
must confirm an order of invalidity made by a High Court
in respect
of an Act of Parliament, a provincial Act or conduct of the
President.
[14]
According
to section 172(2)(a), the declaration has no force unless
confirmed by this Court.
[15]
[12]
The crucial question is whether it is
necessary for this Court to confirm the High Court’s order of
constitutional invalidity.
In other words, is Decree 9 an Act
of Parliament, a provincial Act or conduct of the President?
The
status of Decree 9
[13]
Decree
9 is certainly not conduct of the President, for purposes of
section 167(5), even though it was passed by the President
of
the former Republic of Transkei. When the interim Constitution
was enacted, it did not “purport to bring about a
merger
between five ‘independent countries’”.
[16]
Our Constitution does not accord the Presidents of the former
homeland states of Transkei, Bophuthatswana, Venda and Ciskei
(TBVC
states) any legal status, let alone the same status as the President
of the Republic of South Africa.
[17]
[14]
The central question is whether Decree 9 is
a provincial Act. Ms Khohliso maintains that it is, but her
counsel hinted that
the Decree may enjoy a status equivalent to an
Act of Parliament. The first respondent, the State, did not
file submissions
with this Court. The second respondent, the
Member of the Executive Council for Economic Development, Tourism and
Environmental
Affairs, Eastern Cape (MEC), contends that Decree 9 is
not a provincial Act.
[15]
The
purpose of sections 167(5) and 172(2)(a) of the Constitution is to
promote comity between the branches of government.
This entails
respect for the roles of the President and the National and
Provincial Legislatures, as elected law-makers.
[18]
In
Weare
it was said that this purpose “follows from a recognition of
the status of the Legislatures and the President in our
constitutional
order”.
[19]
If a Provincial or the National Legislature enacts a law, any
provision in it can be effectively and finally invalidated
only if it
is inconsistent with the Constitution as determined by the highest
Court in the land. In
Weare
and
Mdodana
[20]
this Court used comity as a guiding principle.
[21]
[16]
Counsel
for Ms Khohliso submitted that we should also give guidance on
whether litigants are obliged to bring confirmation proceedings
[22]
when legislation similar to Decree 9 is found to be unconstitutional
by a High Court. If a litigant cannot ascertain with
any
measure of certainty that a High Court’s declaration of
invalidity is of immediate force and effect, parties will have
to
bring confirmation proceedings to this Court each time an order of
invalidity is made, even if only to be told that the Court
does not
have to confirm the High Court order and that it took immediate
effect. Clarification of the applicable test for
what qualifies
as a provincial Act is thus necessary with a view to both comity and
certainty.
[17]
In
Weare
this
Court was asked to determine whether the KwaZulu-Natal Regulation of
Racing and Betting Ordinance
[23]
had the status of a provincial Act. The Ordinance was
enacted by a pre-1994 Provincial Legislature, known as a Provincial
Council. The treatment of the Ordinance by the KwaZulu-Natal
Legislature in the years following 1994 included incorporating
it by
reference into the KwaZulu-Natal Gambling Act
[24]
and two amendments to the Ordinance to provide for its continued
functioning.
[25]
The
effect of this, the Court held, was that the Ordinance was an
expression of the legislative will of the Provincial Legislature
and
should be treated accordingly.
[26]
[18]
In
Mdodana
this Court set out “significant
indicators” of the status of old order legislation, namely
its—
(a)
original source or origin;
[27]
(b)
territorial application;
[28]
and
(c)
history or treatment both before and after the enactment of the
Constitution.
[29]
Origin
[19]
Decree 9 was issued by the President of the
former Transkei, upon the recommendation of the Military Council.
The Ordinances
in
Mdodana
and
Weare
were
enacted by pre-1994 Provincial Councils. Counsel for Ms
Khohliso argued that, despite being a presidential decree, the
Decree
was original (and not delegated) legislation, with the same status as
if it were passed by a body equivalent to a Provincial
Council.
This, she said, was because the President of the Transkei was vested
with full legislative powers.
[20]
The
comparison to an Ordinance passed by a Provincial Council is not
helpful. The status of legislation passed by Provincial
Councils became uncertain from 1986 onwards when the Provincial
Government Act
[30]
was passed,
abolishing Provincial Councils and transferring their law-making
powers to the Executive.
[31]
Thus, whether these bodies exercised executive or legislative power
when creating subsequent legislation is not entirely
clear.
[21]
In
addition, regardless of its origin, all law that was in force before
the Constitution, remained in force until amended or
repealed.
[32]
This
covers any rule with the force of law,
[33]
including any Ordinance or Decree, regardless of whether it
originated from a Provincial Council, Military Council or President.
The Decree – like all legislation passed prior to 1994 –
is undemocratic. It was born in constitutional sin.
At
the time, democracy was the privilege of the white minority.
The recognition of pre-1994 legislation was based on the
practical
reality that law was in place regulating people’s lives.
[22]
While it cannot be said that the
illegitimacy of the government of the Transkei renders its laws less
valid or of a lower status
than other legislation passed before 1994,
Decree 9 is distinguishable from provincial Ordinances in that they
were at least intended
to apply to provinces. By contrast,
Decree 9 was intended to apply to a country – albeit one whose
independence was
not internationally recognised.
[23]
Comity does not dictate that this Court
regard Decree 9 as a provincial Act. Unless there is sufficient
post-1994 treatment
by the Provincial Legislature to show it endorses
the Decree, the Decree’s origin will militate against a finding
that it
is a provincial Act.
Territorial
application
[24]
In
Mdodana
this
Court held that in light of the limited territorial application of an
Ordinance – which operated in parallel with other
legislation
on the same subject matter – it was not akin to a provincial
Act.
[34]
In this case
there are three parallel pieces of legislation operating in the
Eastern Cape that govern the same or similar
subject matter.
[35]
This is similar to the three pieces of legislation that governed the
impounding of livestock in the Eastern Cape in
Mdodana
.
[36]
[25]
The
question of territoriality does not entail simply asking whether the
legislation in
question
applies only to a portion of a province. It is conceivable that
a provincial or national Act may pertain only to
a particular region
or area. Statutes that establish a university or regulate an
industry located in one area do so.
[37]
This does not, by itself, relegate those statutes to a status lower
than a provincial Act. Similarly the National Legislature
may
enact legislation that applies only in one province, as long as the
subject matter is within its sphere of legislative competence.
[38]
This does not render that Act provincial in status.
[26]
However, the above can be distinguished
from a case where, within a single province, different pieces of
legislation regulate the
same subject matter in different parts –
a distinction apparently based only on territory and no other
reason. Decree
9 is of that kind. It does not purport to
regulate environmental conservation province wide, but only in a
portion of
the province.
[27]
This
does not mean, however, that legislation that applies only in part of
one province is never a provincial Act. In
Mdodana
there was no evidence that the Legislature considered the Ordinance
after 1994.
[39]
No
finding could be made as to whether the Ordinance had been
endorsed.
[40]
Implicitly, if there had been a positive finding of endorsement, as
in
Weare
,
the territorial application would have been less relevant to
determining the status of the legislation. Accordingly –
given Decree 9’s limited territorial application – one
must conclude that it does not have the status of a provincial
Act,
unless its treatment by the Legislature after 1994 amounts to
endorsement.
Treatment
[28]
Although
the origin and territorial application were discussed in
Weare
and
Mdodana
,
“treatment of the Ordinance by the . . . Provincial Legislature
in the years following 1994”
[41]
appears to have been the most important consideration.
[42]
We have a legal system reborn. The prime consideration must be
whether and how our post 1994 Legislatures treated
the
legislation. Guided by the principle of comity, this Court must
ascertain whether these democratically elected bodies
enacted or
endorsed the legislation in a way that amounts to taking legislative
ownership of it. If they did, their conduct
must be respected
by ensuring that the highest court confirms any declaration of
invalidity. If they did not, the laws remain
binding and
enforceable legislation,
[43]
but a declaration of invalidity by the High Court need not be
confirmed by this Court.
[29]
Whether
endorsement has occurred depends on how legislation has been treated
by a Legislature.
Weare
set
out the two primary indicators: first, whether the legislation has
been incorporated by reference into new-order legislation;
[44]
second, whether the legislation has been amended in a way that
indicates contemplation and approval of the remaining
provisions.
[45]
Ms
Khohliso has raised two additional factors, namely assignment by the
President of the administration of legislation under
the interim
Constitution and executive action taken in terms of the legislation.
[30]
If no endorsement is established, because
post-1994 Legislatures have not dealt with the legislation at all (as
in
Mdodana
),
or have treated it inadequately to evidence endorsement sufficiently,
courts may have to place greater emphasis on the legislation’s
origin and territoriality to determine its status. If
endorsement is established, it would not be necessary to depend on
origin and territoriality, because the post-1994 Provincial
Legislature, by endorsing the legislation in question, assumed or
accepted it, as if it had promulgated it. The question in this
case is whether treatment less than that in
Weare
could amount to giving the legislation
the status of a provincial Act.
Reference
[31]
The
Eastern Cape Parks and Tourism Agency Act
[46]
– a provincial Act – refers to section 27 of Decree 9
when defining a “protected area”.
[47]
Ms Khohliso argues that this amounts to incorporation by reference
and therefore elevates the status of Decree 9 to
that of a
provincial Act. The reference in a provincial Act to some
extent recognises the Decree as law applicable in the
province.
But is this enough to evidence endorsement of the Decree?
[32]
The
doctrine of incorporation by reference finds application in many
areas of law.
[48]
It
refers to the situation where one document supplements its terms by
embodying the terms of another.
[49]
There is a difference between incorporation by reference and mere
reference though.
[50]
It
is not enough to mention another document, simply to point the reader
to it in order to find the meaning of a term.
[51]
More is needed. In the context of statutory incorporation, the
intention to re-enact what is being referred to is required.
[52]
This Court has described this as “a clear intention that the
provisions – all the provisions – of the Ordinance
be
operable in the province”.
[53]
[33]
In
Weare
the
Ordinance
[54]
was incorporated
by reference into the KwaZulu Natal Gambling Act,
[55]
which provided that the Act applied only to those forms of gambling
not already regulated by the Ordinance. This was more
than mere
reference for clarification or definitional purposes. The
reference was intended to create a coherent regulatory
framework
which included the continued application of the Ordinance.
Decree 9 is mentioned once in the Parks Act –
in the
definitions section – and only to show that national parks
(which were, as a matter of fact, declared as such in terms
of Decree
9) were “protected areas” for the purposes of the Parks
Act. Moreover, the Parks Act does not refer
to sections 13 and
84 of the Decree, which were relevant to Ms Khohliso’s
conviction.
[34]
By contrast, Decree 9 is referred to for
the sake of convenient substitution and not the continued application
of the Decree.
The reference does not amount to endorsement by
the Legislature. So, it does not elevate the Decree to the
status of a provincial
Act.
Amendment
[35]
This
Court has held that the laws passed by the Legislatures of the TBVC
states are not Acts of Parliament as contemplated in the
interim
Constitution.
[56]
Only
the South African Parliament can pass an Act of Parliament.
However, Ms Khohliso argues that Parliament’s
enactment of the
Sea Fishery Amendment Act
[57]
– which repealed Chapter 10 of Decree 9 – serves as
evidence that Parliament considered the entire Decree and elected
to
repeal Chapter 10. Parliament thereby endorsed the remainder.
Ms Khohliso argued that this treatment of the Decree
by the
democratic Parliament triggered the need for comity, thus requiring
this Court’s imprimatur on the declaration of
invalidity.
[36]
It is not clear whether Ms Khohliso regards
this “consideration” by Parliament as elevating the
status of Decree 9 to
that of an Act of Parliament or a
provincial Act. The logic of the argument would indicate
that, if the amendment amounted
to endorsement as set out in
Weare,
this would be endorsement by Parliament
and would therefore amount to an Act of Parliament. However in
the papers and during
oral argument Ms Khohliso’s position
appears to be that this elevated the Decree’s status to that of
a provincial Act
only. No argument has been advanced as to how
the intention or endorsement of Parliament could be transposed to a
Provincial
Legislature.
[37]
This
argument is, in any event, not persuasive. The enactment of the
Sea Fishery Amendment Act created a uniform national
regulatory
scheme for sea fisheries.
[58]
The National Legislature often seeks to create uniform national
schemes.
[59]
These
national Acts then impact on the continued application of certain
provisions of other legislation (national, provincial
and possibly
even municipal), but this neither elevates nor lowers the status of
that legislation. Any law in the country
that conflicted with
the subject matter of the Sea Fishery Amendment Act would have been
jettisoned in relevant part.
[60]
[38]
One must also distinguish between cases
where a democratically elected Legislature specifically considered
the legislation and amended
it – as in
Weare
– and amendments that arise as a result of the enactment of a
completely different regulatory scheme. These enactments
may
well overlap in part with a portion of the legislation before the
Court, as in this case.
[39]
Partial
amendment could mean either that the residual provisions were not
considered, or that they were tacitly accepted by the
Legislature.
[61]
Weare
held
that the latter would apply when the scheme of the legislation being
amended or repealed is so interlinked and interdependent
that it is
impossible to dislocate the amended or repealed sections from the
others.
[62]
This is not
the case here. Chapter 10 regulated a discrete category, namely
sea fisheries. This can be neatly
separated from the remainder
of Decree 9, which relates to inland fisheries and other wildlife,
without needing to consider the
other Chapters.
[40]
Ms
Khohliso also argues that Parliament contemplated amending the Decree
and elected not to do so. Her counsel cited two examples.
The first is the enactment of the Justice Laws Rationalisation
Act,
[63]
which repealed many
pieces of Transkei legislation, but not Decree 9.
[64]
Second, when the National Environmental Management: Integrated
Coastal Management Bill was published for comment, the Minister
of
Environmental Affairs and Tourism suggested amendments to Decree 9,
but these were not effected. Should consideration
be given to
failed or abandoned amendments? I think not. There is no
evidence before us as to why Decree 9 was not
repealed or amended.
It cannot be inferred that Parliament elected to endorse Decree 9
by leaving it on the statute
book in its current form.
Assignment
[41]
In
1994 the President assigned executive powers in respect of various
portions of Decree 9 to a competent authority in the Eastern
Cape
Province, in terms of section 235(8) of the interim
Constitution.
[65]
Ms
Khohliso argues that the assignment is relevant to the status of the
Decree because, in terms of section 235(6),
[66]
if a provision is not assigned then it remains under national
authority. Regardless of whether she is correct,
[67]
it is not clear if or how partial assignment would change the
Decree’s status or whether it would only change the status
of
the assigned provisions and not the others.
[42]
Assignment
of executive functions does not seem relevant to the status of
legislation. The functional area of Decree 9 is
the environment
and conservation, which falls in Schedule 4 of the Constitution and
thus in an area of provincial legislative competence.
The
assignment was not necessary to ground the Eastern Cape’s
legislative competence.
[68]
The fact that only parts of the Decree were assigned would not
deprive the Provincial Legislature of its ability to amend
or repeal
it.
[43]
Since
Schedule 4 lists areas of concurrent national and provincial
competence, the issue of partial assignment might have been relevant
if it resulted in only the National Legislature being able to amend
the parts of Decree 9 which were not assigned. It could
be
argued that this elevates Decree 9 above even the status of a
provincial Act. However, the partial assignment did not
appear
to bring about this state of affairs. The President’s
assignment of only parts of Decree 9 to the Eastern Cape
provincial authorities does not mean that the residual provisions
were reserved and came under exclusive national legislative
competence. The Eastern Cape Legislature did not need to have
any part of Decree 9 assigned to it to ground its legislative
competence.
[69]
[44]
Assignment, in this case, is not relevant
to the question of whether the Provincial Legislature has endorsed
Decree 9.
Executive
action
[45]
Ms
Khohliso cites several examples of executive action taken in terms
of, or with reference to, Decree 9 as evidence that the Decree
has
been treated as a provincial Act.
[70]
This cannot be relevant to the legislative status of the Decree.
The Executive has to act in terms of existing legislation;
this
follows from the accepted democratic principle of the separation of
powers. The Executive cannot make law and Decree
9 remains
existing law because of the preservation of pre-1994 legislation,
subject to consistency with the Constitution.
[71]
Executive reference to, or conduct in terms of, Decree 9 is not
enough to elevate its status to that of a provincial Act.
The
enquiry is whether Parliament or the Provincial Legislature has
pronounced on or endorsed the legislation.
[46]
The conclusion has to be that the Decree
does not, because of its treatment, have the status of a provincial
Act. The Eastern
Cape Legislature has not treated it in a way
that amounts to endorsing it or recognising its status as that of a
provincial Act,
as in, for example,
Weare
.
It is also clearly not an Act of Parliament.
Summary
and conclusion
[47]
Decree 9 is valid and applicable law in the
Transkei. This does not make it a provincial Act or an Act of
Parliament.
[48]
The post-1994 treatment of the Decree by
Parliament and the Provincial Legislature is not sufficient to
evidence endorsement or
enactment. The Legislature did not take
legislative ownership of it. The origin and territorial
application of the
Decree, together with parallel legislation on the
same subject matter, also suggest that the Decree is not a provincial
Act.
[49]
It is clear from
Weare
,
Mdodana
and
this decision that – unless expressly embraced by
post-democratic legislation – provincial laws emanating from
the TBVC states will rarely have the status of a “provincial
Act”. A High Court’s declaration that it is
invalid
will therefore not require this Court’s confirmation.
[50]
This does not mean, of course, that this
Court cannot hear a matter concerning the constitutionality of
legislation which is not
an Act of Parliament, a provincial Act or
conduct of the President. It can do so on appeal, for example;
but not by way of
confirmation proceedings.
[51]
Since Decree 9 is not a provincial Act, an
Act of Parliament, or conduct of the President, this Court does not
have to confirm the
declaration of constitutional invalidity by the
High Court. That declaration had immediate effect.
Costs
[52]
As
her appeal succeeded in the High Court, Ms Khohliso did not come to
this Court to enforce her rights. She sought legal
certainty – which will also be of benefit in future cases.
Her cause was thus rights-related. In this dispute
between a
private party and the state the principles of
Biowatch
apply.
[72]
There should be no costs order.
End
note
[53]
It is rather odd that – 20 years into
our 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. When these laws determine criminal
liability, the situation
looks even worse. It is not clear from
the facts of the matter why this is the case. It is clear,
though, 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.
Order
The
following order is made:
1.
The application is dismissed.
2.
There is no order as to costs.
For
the Applicant:
L
Crouse instructed by Legal Aid South Africa.
For
the Second Respondent:
G
Bloem SC, P Kroon, D Young instructed by the State Attorney.
[1]
Decree
9 (Environmental Conservation) of 1992 of the Republic of Transkei
(Decree 9).
[2]
There
are, of course, no indigenous tigers in Africa. The outrageous
“A tiger in Africa?” scene appeared in
the film
Monty
Python’s Meaning of Life
(1983), which – amongst other things – exposed the
ignorance and pretentiousness of conventional Western notions
of
history, civilisation and ethics.
[3]
President
Botha Sigcau was sworn in on 26 October 1976 and Paramount Chief
Kaiser Matanzima became the Prime Minister.
[4]
Decree
1 of 1988 dissolved Parliament and established a Military Council to
“provide for the peace, order and good government
of the
Republic of Transkei until such time as civilian rule is restored”.
The Commander of the Transkei Defence
Force, General Bantu Holomisa,
was the Chairman of the Military Council.
Paramount Chief Tutor Ndamase remained
President.
[5]
In
March 1990 Brigadier Oupa Gqozo ousted President Lennox Sebe and
proclaimed a military government.
[6]
Item
2 of Schedule 6 of the final Constitution.
[7]
Read
with sections 1- 4, 6-7, 12, 72, 76, 79- 82 and 85 and Schedule 1 of
Decree 9.
[8]
Section
1 defines a protected wild animal to include all birds not
explicitly excepted in Schedules 1, 3 and 4 of the Decree.
It
also defines a carcass as any part thereof. Section 81 renders
this contravention an offence.
[9]
Section
84(13) provides: “It shall be no defence in any prosecution
for an offence in terms of this Decree that the accused
had no
knowledge of some fact or other or did not act wilfully.”
[10]
On
the fundamental importance of culpability in criminal law, see
S
v Coetzee and Others
[1997] ZACC 2
; 1997 (3) SA 527 (CC)
[1997] ZACC 2
; ;
1997 (4) BCLR 437
(CC) at
para 176. See also
S
v De Blom
1977 (3) SA 513
(A) on ignorance of the law as a defence.
[11]
Section
35(3)(h) provides: “Every accused person has a right to a fair
trial, which includes the right . . . to be presumed
innocent, to
remain silent, and not to testify during the proceedings”.
[12]
While
the Decree proscribes the possession of a “protected wild
animal” carcass, which includes almost all birds,
the rest of
the Eastern Cape (excluding the Ciskei) is regulated by the Nature
and Environmental Conservation Ordinance 19 of
1974 (Ordinance 19).
Section 26 of Ordinance 19, read with section 42, only criminalises
the possession of the carcass
of an “endangered species”,
a far narrower category.
[13]
The
High Court did not state explicitly which subsections of section 9
it was applying in its equality analysis but appears to
have
concluded that the impugned provisions are inconsistent with section
9(1) and (3).
[14]
Section
167(5) provides that the—
“
Constitutional
Court makes the final decision whether an Act of Parliament, a
provincial Act or conduct of the President is constitutional,
and
must confirm any order of invalidity made by the Supreme Court of
Appeal, a High Court, or a court of similar status, before
that
order has any force.”
[15]
Section
172(2)(a) provides that the—
“
Supreme
Court of Appeal, a High Court or a court of similar status may make
an order concerning the constitutional validity of
an Act of
Parliament, a provincial Act or any conduct of the President, but an
order of constitutional invalidity has no force
unless it is
confirmed by the Constitutional Court.”
[16]
Zantsi
v Council of State, Ciskei and Others
[1995] ZACC 9
;
1995 (4) SA 615
(CC);
1995 (10) BCLR 1424
(CC) at
para 35.
[17]
Id.
[18]
In
Pharmaceutical
Manufacturers Association of SA and Another: In re Ex Parte
President of the Republic of South Africa and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC) at
paras 55-6 this Court held that it—
“
has
exclusive jurisdiction in respect of certain constitutional matters,
and makes the final decision on those constitutional
matters that
are also within the jurisdiction of other courts.
.
. .
This
is the context within which section 172(2)(a)
. . . is concerned with the law making
acts of the Legislatures at the two highest levels [national and
provincial], and the conduct
of the President, who as head of state
and head of the Executive is the highest functionary within the
state. . . . The
apparent purpose of the section is to ensure
that this Court, as the highest court in constitutional matters,
should control
declarations of constitutional invalidity made
against the highest organs of state.” (Footnotes
omitted.)
See
also
President of the Republic of South Africa and Others v South
African Rugby Football Union and Others
[1998] ZACC 21
;
1999 (2)
SA 14
(CC);
1999 (2) BCLR 175
(CC) at para 29:
“
Counsel
for the applicants submitted that the effect of section 172(2) is to
give this Court exclusive jurisdiction to make orders
of invalidity
that are binding upon Parliament, Provincial Legislatures and the
President. The purpose of these provisions,
so it was
contended, is to preserve the comity between the Judicial branch of
government on the one hand and the Legislative
and Executive
branches of government on the other, by ensuring that only the
highest court in constitutional matters intrudes
into the domains of
the principal Legislative and Executive organs of state. In my
view this submission correctly reflects
the purpose of
section 172(2). Our Constitution makes provision for the
separation of powers and vests in the Judiciary
the power of
declaring statutes and conduct of the highest organs of state
inconsistent with the Constitution and thus invalid.
It
entrusts to this Court the duty of supervising the exercise of this
power and requires it to consider every case in
which an order of
invalidity has been made, to decide whether or not this has been
correctly done. This Court has a duty
to assume this
supervisory role.” (Footnote omitted.)
[19]
Weare
and Another v Ndebele NO and Others
[2008]
ZACC 20
;
2009 (1) SA 600
(CC);
2009 (4) BCLR 370
(CC) (
Weare
)
at para 22.
[20]
Mdodana
v Premier, Eastern Cape and Others
[2014]
ZACC 7
;
2014 (4) SA 99
(CC);
2014 (5) BCLR 533
(CC).
[21]
Weare
above n 19 at para 23 and
Mdodana
id
at paras 22-4.
[22]
Under
rule 16 of the Rules of this Court. Rule 16 reads:
“
(1)
The Registrar of a court which has made an order of constitutional
invalidity
as contemplated in section 172 of the Constitution shall,
within 15 days of such order, lodge with the Registrar of the Court
a copy of such order.
(2)
A person or organ of state entitled to do so and desirous of
appealing
against such an order in terms of section 172(2)(d) of the
Constitution shall, within 15 days of the making of such order,
lodge
a notice of appeal with the Registrar and a copy thereof with
the Registrar of the court which made the order, whereupon the
matter shall be disposed of in accordance with directions given by
the Chief Justice.
(3)
The appellant shall in such notice of appeal set forth clearly the
grounds on which the appeal is brought, indicating which findings of
fact and/or law are appealed against and the order it is
contended
ought to have been made.
(4)
A person or organ of state entitled to do so and desirous of
applying
for the confirmation of an order in terms of section
172(2)(d) of the Constitution shall, within 15 days of the making of
such
order, lodge an application for such confirmation with the
Registrar and a copy thereof with the Registrar of the court which
made the order, whereupon the matter shall be disposed of in
accordance with directions given by the Chief Justice.
(5)
If no notice or application as contemplated in subrules (2) and
(4),
respectively, has been lodged within the time prescribed, the matter
of the confirmation of the order of invalidity shall
be disposed of
in accordance with directions given by the Chief Justice.”
[23]
28
of 1957.
[24]
10
of 1996.
[25]
Weare
above
n 19 at para 33.
[26]
Id
at para 36.
[27]
Mdodana
above
n 20 at para 32.
[28]
Id
at para 36. While this criterion was not in the paragraph
explicitly listing “more significant indicators”,
it is
evident from the remainder of the judgment that the existence of
parallel legislation was a crucial factor in determining
the status
of the legislation.
[29]
Id
at para 32.
[30]
69
of 1986.
[31]
Mdodana
above
n 20 at para 27 and
Weare
above
n 19 at paras 26-8.
[32]
Section
229 of the interim Constitution and item 2 of Schedule 6, read with
section 241, of the final Constitution.
[33]
Zantsi
above
n 16 at para 37.
[34]
Mdodana
above
n 20 at para 36.
[35]
Decree
9 in the former Transkei, the Nature Conservation Act 10 of 1987 in
the former Ciskei and Ordinance 19 in the rest
of the Eastern
Cape.
[36]
The
Cape Pounds Ordinance 18 of 1938, Ciskei Pounds Act 43 of 1984 and
Proclamation 2431 of 1937 (Transkei).
[37]
See,
for example, provincial legislation relating to the establishment of
nature reserves; the University of the North-West (Private)
Act 17
of 1996; the
University of Cape Town (Private) Act 8 of 1999
; and
the KwaZulu Amakhosi and Iziphakanyiswa Act 9 of 1990. See
also provincial legislation which establishes specific
corporations
or institutions which operate in a particular area or industry, such
as the North West Housing Infrastructure and
Delivery Company Act 10
of 1997 and the KwaZulu-Natal Dube TradePort Corporation Act 2 of
2010.
[38]
Section
44 of the Constitution sets out the legislative authority of
Parliament. Section 44(1)(a) provides that the national
legislative authority is vested in Parliament which has the power—
“
(i)
to amend the Constitution;
(ii)
to pass legislation with regard to any matter, including a matter
within a functional area listed in Schedule 4, but excluding,
subject to subsection (2), a matter within a functional area listed
in Schedule 5; and
(iii)
to assign any of its legislative powers, except the power to amend
the Constitution, to any legislative body in another sphere of
government”.
Schedule
4 sets out the functional areas of concurrent national and
provincial legislative competence, which includes the environment.
Schedule 5 sets out the functional areas of exclusive provincial
legislative competence. Section 44(2) sets out the limited
circumstances in which Parliament may intervene in provincial
competences by passing legislation with regard to a matter falling
within a functional area listed in Schedule 5. This occurs,
for example, when it is necessary to maintain national security.
[39]
Above
n 20 at para 35. The Court held that the Legislature had
“never expressed itself on the [Cape Pounds] Ordinance”.
[40]
In
addition, origin was also not determinative because there was no
definitive finding on the status of Ordinances passed by the
Council
of Provinces prior to their confirmation into our new democratic
order by section 229 of the interim Constitution.
[41]
Weare
above
n 19 at para 33 and the judgment generally. There was
negligible pre-1994 treatment since Decree 9 was promulgated
in
1992, but I concentrate only on post-1994 treatment here.
[42]
Mdodana
above
n 20 at paras 34 and 36-7 and the judgment generally. See also
Gold
Circle (Pty) Ltd and Another v Premier, KwaZulu Natal
2005
(4) SA 402
(D) at 417A-B, where the Court concedes that the
particular Ordinance’s status could have changed based on its
treatment
by the Provincial Legislature.
[43]
Item
2 of Schedule 6 of the final Constitution.
[44]
Weare
above
n 19 at paras 35-6.
[45]
Id.
[46]
2
of 2010 (Parks Act).
[47]
Section
1(a) of the Parks Act defines “protected area” as—
“
any
nature reserve established under section 6 of [Ordinance 19],
section 27 of [Decree 9] or section 23 of the [Ciskei Nature
Conservation Act] which is, at the time of commencement of this Act,
listed as a Provincial park in the register of provincial
parks or
managed by the Eastern Cape Parks Board in section 33 or section
8(1)(a) read with section 60(1)(d)(iii) of the Provincial
Parks
Board Act (Eastern Cape), 2003, irrespective of whether the MEC
declared such a Provincial park or assigned the management
thereof
as required in terms of sections 33 or 41 of that Act or in terms of
[Decree 9] or the Ciskei Nature Conservation Act”.
[48]
See,
in the context of contracts of sale,
Van
Wyk v Rottcher's Saw Mills
(
Pty
)
Ltd
1948
(1) SA 983
(A) at 990-1; in the context of contracts of suretyship,
Trust
Bank of Africa Ltd v Cotton
1976
(4) SA 325
(N) at 329E-H; in the context of wills,
Moses
v Abinader
1951
(4) SA 537
(A); and in the context of statutes,
Solicitor-General
v Malgas
1918
AD 489
(
Malgas
).
[49]
Industrial
Development Corporation of SA (Pty) Ltd v Silver
[2002] ZASCA 112
;
2003 (1) SA 365
(SCA) at para 6.
[50]
Hartland
Implemente (Edms) Bpk v Enal Eiendomme BK en Andere
2002 (3) SA 653
(NC) at 670-1.
[51]
Moses
above
n 48 at 542.
[52]
Malgas
above
n 48 at 491.
[53]
Weare
above
n 19 at para 35.
[54]
Above
n 23.
[55]
Above
n 24.
[56]
Zantsi
above
n 16 at para 40.
[57]
74
of 1995.
[58]
Section
5 of this Act rendered the Sea Fishery Act 12 of 1988 applicable to
the entire Republic. This would have conflicted
with the two
pieces of legislation which applied in the Transkei (Chapter 10 of
Decree 9) and Ciskei (various provisions of the
Ciskei Nature
Conservation Act). Therefore these provisions had to be
repealed. This Sea Fishery Amendment Act has
now been replaced
by the
Marine Living Resources Act 18 of 1998
.
[59]
See
above n 38 regarding national legislative competence.
[60]
In
this case Chapter 10 of Decree 9 and various provisions of the
Ciskei Nature Conservation Act.
[61]
Weare
above
n 19 at para 35.
[62]
Id.
[63]
18
of 1996.
[64]
The
Act extended the application of various South African Acts to the
entire territory, thereby rationalising the regulatory framework
for
those areas of the law. This predominantly related to the
justice system but also included insolvency, wills, drug
trafficking, maintenance, domestic violence and matrimonial affairs.
The Act did not purport to rationalise all law throughout
the
Republic and did not imply anything about the status of the areas of
law which were not rationalised. The short title
of the Act
provides for the rationalisation and consolidation of only
certain
statutes.
[65]
Proclamation
111 of 1994. Section 235(8) reads:
“
(a)
The President may, and shall if so requested by the Premier of a
province,
and provided the province has the administrative capacity
to exercise and perform the powers and functions in question, by
proclamation
in the
Gazette
assign,
within the framework of section 126, the administration of a law
referred to in subsection 6(b) to a competent authority
within the
jurisdiction of the government of a province, either generally or to
the extent specified in the proclamation.
(b)
When the President so assigns the administration of a law, or at
any
time thereafter, and to the extent that he or she considers it
necessary for the efficient carrying out of the assignment,
he or
she may—
(i)
amend or adapt such law in order to regulate its application
or
interpretation;
(ii)
where the assignment does not relate to the whole of such law,
repeal and re-enact, whether with or without an amendment or
adaptation contemplated in subparagraph (i), those of its provisions
to which the assignment relates or to the extent that the assignment
relates to them; and
(iii)
regulate any other matter necessary, in his or her opinion, as a
result
of the assignment, including matters relating to the transfer
or secondment of persons (subject to sections 236 and 237) and
relating to the transfer of assets, liabilities, rights and
obligations, including funds, to or from the national or a
provincial
government or any department of state, administration,
force or other institution.”
[66]
Section
235(6) of the interim Constitution read, in part:
“
The
power to exercise executive authority in terms of laws which,
immediately prior to the commencement of this Constitution,
were in
force in any area which forms part of the national territory and
which in terms of section 229 continue in force after
such
commencement, shall be allocated as follows—
.
. .
(b)
All laws with regard to matters which fall within the functional
areas specified in Schedule 6 and which are not matters referred to
in paragraphs (a) to (e) of section 126(3) shall—
(i)
if any such law was immediately before the commencement of
this
Constitution administered by or under the authority of a functionary
referred to in subsection (1)(a) or (b), be administered
by a
competent authority within the jurisdiction of the national
government until the administration of any such law is with
regard
to any particular province assigned under subsection (8) to a
competent authority within the jurisdiction of the government
of
such province; or
(ii)
if any such law was immediately before the said commencement
administered by or under the authority of a functionary referred to
in subsection (1)(c), subject to subsections (8) and (9) be
administered by a competent authority within the jurisdiction of the
government of the province in which that law applies, to
the extent
that it so applies: Provided that this subparagraph shall not apply
to policing matters, which shall be dealt with
as contemplated in
paragraph (a).”
[67]
In
my view the submission is not correct. Decree 9 falls under
section 235(6)(b)(ii) of the interim Constitution, since
it
relates to the environment which is listed in Schedule 6 of the
interim Constitution and was administered by a functionary
outside
of the Republic as contemplated in section 235(1)(c).
Accordingly, it does not necessarily appear to have been
automatically assigned to the national government and not the
provincial government. Therefore it seems that the national
government may not have retained the executive powers for the
remainder of the Decree.
[68]
Compare
Western
Cape Provincial Government and Others In re: DVB Behuising (Pty) Ltd
v North West Provincial Government and Another
[2000]
ZACC 2
;
2001 (1) SA 500
(CC);
2000 (4) BCLR 347
(CC), where the
legislative competence was not a category listed in Schedule 4.
[69]
Ms
Khohliso also contends that because the Court in
Mdodana
above
n 20 stated that legislative history is the most significant factor,
there must be other relevant factors in determining
the status of
Decree 9. Ms Khohliso argues that a relevant factor ought to
be the subject matter of the legislation, namely
the sphere of
government responsible (environmental legislation falls under
Schedule 4 which lists areas of concurrent national
and provincial
competence) and the constitutional importance of any rights
implicated by the legislation (environmental rights
are
constitutionally significant). In this way, she distinguishes
Decree 9 from the Pounds Ordinance 18 of 1938, at
issue in
Mdodana
.
Ms Khohliso does not advance a clear argument as to why the
importance of the Decree’s subject matter would determine
its
status as a provincial Act. That legislative competence is
concurrent also does not appear to be relevant to any law
or policy
argument and seems to miss the aim of the exercise – to
determine whether the Provincial Legislature has endorsed
the
legislation. The legislation’s subject matter was not
canvassed in
Mdodana
or
Weare
.
And it still does not address the main issue of comity because it
does not speak to whether the provincial or national
government has
endorsed the legislation.
[70]
The
MEC purportedly acted in terms of section 93 of Decree 9 when
establishing the Bizana Nature Reserve; the area of the former
Transkei is treated differently and separately in provincial notices
for hunting seasons and the publications of hunting seasons
which
refer to the area of the former Transkei were promulgated in terms
of Decree 9, whereas the publications for the Eastern
Cape and the
former Ciskei were promulgated under different Acts and Ordinances;
and the Wild Coast Tourism Development Policy
refers to Decree 9 to
explain the prohibition of vehicles on Wild Coast beaches.
[71]
Above
at [7].
[72]
Biowatch
Trust v Registrar, Genetic Resources, and Others
[2009]
ZACC 14
;
2009 (6) SA 232
(CC); 2009 (10) BCLR 1014 (CC) at para
22.