IN THE CONSTITUTIONAL COURT OF

Case no: ______Ex HC CASE NO: 86/2011

In the matter between:

NOKHANYO KHOHLISO APPLICANT and

THE STATE FIRST RESPONDENT

MEC, ECONOMIC DEVELOPMENT,

TOURISM AND ENVIRONMENTAL

AFFAIRS, SECOND RESPONDENT

APPLICANT’S AFFIDAVIT IN APPLICATION FOR CONFIRMATION OF AN ORDER OF CONSTITIUTIONAL INVALIDITY IN TERMS OF RULE 16(4)

I, the undersigned

Fuzile Ngxukumeshe do hereby make oath and state:

2

1. I am an adult male attorney with right of appearance in the High Court

and in the employ of Legal Aid South Africa. I am the Office Head,

also known as Justice Centre Executive, of the Mthatha Justice

Centre situated at 22 Durham Road, Mthatha.

2. I represented the Appellant in the Magistrate’s Court on

criminal charges relating to Decree 9 of 1992, which matter went on

Appeal to the Mthatha High Court and which order is the subject of

this application as contemplated in Rule 16(4) of this Honourable

Court’s rules. I am fully authorised to make this affidavit as to seek

confirmation of the Mthatha High Court order.

3. I attach hereto as ANNEXURE A the judgment of Mjali J, with whom

Griffiths J agreed, as delivered on 12 December 2013 in the Eastern

Cape Local Division, Mthatha.

4. In terms of Rule 16(4) read with this Court’s practice direction dated 6

December 2013, the Applicant has 15 days to file this application for

confirmation, which will expire on 23 January 2014. The Applicant

therefore contemplates that the papers will be filed timeously.

5. The Mthatha High Court judgment follows after a conviction of the

Applicant before the Magistrate, Tsolo. The Applicant was charged 3

under Decree 9 of 1992, hereinafter referred to as “the Decree”, with

possession of a protected wildlife carcass in terms of section 13(c) of

the Decree, to wit two vulture’s feet. A carcass is defined in the

definition clause of the Decree ‘as any part of a carcass’. Therefore

vulture’s feet or even feathers would constitute a carcass. All birds,

except a few defined species set out in Schedules 1, 3 and 4 to the

Decree are regarded as protected wildlife animals. The Applicant

therefore accepted that a vulture is a protected species and the

possession of any part thereof is an offence under section 13(c).

6. Already at her trial the Applicant contended that sections 13(c) and

84(13) of the Decree offended against the principle of equality and

the right to a fair trial and is as such inconsistent with our

Constitution.

7. The Decree was enacted in the former . In 1994 this territory

became part of South Africa. In terms of Section 229 of the interim

Constitution and item 2 of Schedule 6 of our Constitution the Decree

remained applicable to the former Transkei area, subject thereto that

it was consistent with our Constitution. Other than Chapter 10 of the

Decree, no part of the Decree has been repealed. Chapter 10 was

repealed by the Sea Fishery Amendment Act 74, 1995. The rest of

the Decree is therefore applicable in the former Transkei. 4

8. Section 9 of our Constitution guarantees constitutional equality, which

must include equality in the criminal court and its processes. In the

rest of the Eastern Cape Province (and possibly also in the former

Transkei) the Nature and Environmental Conservation Ordinance 19

of 1974 (hereinafter referred to as “the Ordinance”) has been

applicable since 1 September 1975. The administration of the whole

of the Ordinance has been assigned to the Eastern Cape Province

with effect from 17 June 1994 in terms of Proclamation 111 of 1994,

published in the Government Gazette 15813 of 17 June 1994.

9. There is a differentiation between a person in possession of a bird’s

carcass in the former Transkei under the Decree and a person in

such possession in the rest of the South Africa under the Ordinance.

In the former Transkei, by virtue of the Decree, the Accused can be

charged with the possession of a carcass (two vulture’s feet), as

nearly all birds are regarded as protected wildlife. In the rest of the

Eastern Cape (and possibly also in the former Transkei) the

Ordinance is applicable and a person can only be charged with the

carcass of endangered species in terms of section 44(c). In terms of

the Ordinance possession of a protected wild animal, not a carcass,

is an offence. Protected species are more common than the

endangered species. Thus in the rest of South Africa there would be 5

a higher onus on the State to prove what type of vulture this might

have been and whether it is an endangered species before the

Accused could have been convicted of possession of this carcass.

10. The Decree also contains section 84(13) which creates strict liability

whereby a person in the former Transkei cannot raise the defence

that he/she was not aware of any fact or did not act wilfully. Persons

in the rest of the Eastern Cape are not placed at a similar

disadvantage. There is thus a differentiation between such individuals

and also between groups of persons, namely those who possess in

the former Transkei and those who possess outside the former

Transkei in the rest of the Eastern Cape. This Court has found that a

differentiation will only contravene the right to equality if the distinction

is irrational or, put differently, not rationally connected to a legitimate

government purpose. There is no specific governmental purpose

declared for the distinction and there is no known conscious and

informed decision. Therefore there can be no rational reason,

considered ex post facto, for differentiation.

11. Equality is inter alia influenced by the historical and socio-political

conditions of a society. Therefore it is necessary to consider the 6

present situation in the former Transkei (and in South Africa for that

matter) in the light of the nature of the previous inequalities that

existed and still exists. The homeland of Transkei is a legacy of

apartheid. As Transkei was formerly an area where the majority of

Xhosa-speaking people lived (or were forced to live), this

geographical differentiation should be seen as discrimination on the

basis of race and/or ethnic origin. “Race” and “ethnic origin” are listed

grounds of discrimination and presumed to be unfair, unless shown to

be fair. If the above submission is found to be incorrect, the

differentiation could also be said to amount to discrimination on the

unlisted ground of “territory” or “geographical area.” To consider

whether such discrimination would be unfair, the court will similarly

carefully scrutinise the history of the application in the former

Transkei and conclude that:

11.1. This practice targets persons who were disadvantaged by

previous unfair discrimination.

11.2. It does not protect any legitimate objective. 7

11.3. It does not promote equality in South Africa.

12. It is submitted that once a court finds that there is no rational

connection to a legitimate government purpose, that should then be

the end of the enquiry and it is not necessary to further consider the

provisions of section 36 of the Constitution as the court must of

necessity find that the infringement is not reasonable.

13. One wonders why the Decree still exists more than 18 years after the

dawn of a non-racial South Africa and whether parliament has not

perhaps failed its Constitutional duty to rationalise the laws of South

Africa.

14. Consequently this Honourable Court is requested to confirm the order

of the Mthatha High Court that sections 13(c) and 84(13) are

unconstitutional.

15. The Applicant’s Notice in terms of Rule 21 is attached hereto as

ANNEXURE B.

DATED AT MTHATHA ON THIS 13th DAY OF JANUARY 2014. 8

______Fuzile Ngxukumeshe

I certify that the deponent has acknowledged that she knows and understands the contents of this affidavit which was sworn to before me at Mthatha on the ___ day of JANUARY 2014, the Regulations contained in the Government Notice No. R1258 of 21 July 1972, as amended, having been complied with.

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