Homeland laws a concern to judge

THE Constitutional Court is concerned that, 20 years into democracy, laws that do not apply elsewhere in the country are still valid in former homeland states.

The court stated its unease yesterday in a case involving the possession of vulture feet.

The court had been asked by an Eastern Cape traditional healer, found guilty of possessing vultures’ feet, to confirm that Transkei’s 1992 Decree 9 (Environmental Conservation) was unconstitutional.

The decree applied only in Transkei. The law covering the rest of the Eastern Cape allows for ignorance of the law or lack of intention to commit the crime of possessing vulture feet.

Nokhanyo Khohliso was convicted in the Tsolo Magistrate’s Court in 2010 of being in possession of two vulture feet.

She had wanted to mix a substance from the feet with other ingredients to make muti to protect against theft.

She was sentenced to a fine of R4 000 or 12 months’ imprisonment, suspended for five years.

When she successfully appealed against her conviction in the Mthatha High Court last year, the court also declared the decree unconstitutional as it violated the right to a fair trial, particularly the presumption of innocence.

Khohliso approached the Constitutional Court to confirm the declaration of unconstitutionality, but in a unanimous judgment yesterday, Judge Johann van der Westhuizen dismissed the application as unnecessary.

While the court is required to confirm orders of invalidity for certain laws, the decree was not of this type, so the high court’s ruling had immediate effect.