IN THE HIGH COURT OF SOUTH AFRICA

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CASE NO. 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

SECOND RESPONDENT’S SUBMISSIONS

1. The Transkei was granted its independence from the Republic of South Africa by the Status of Transkei Act, 1976 (Act No. 100 of 1976), which Act commenced on 26 October 1976. In terms of section 1 (1) thereof the territory known as the Transkei was declared to be a sovereign and independent state and ceased to be part of the Republic of South Africa.

2. In terms of section 3 (1) the Legislative Assembly of the Transkei was empowered to make laws for the Transkei.

3. On 14 July 1992 the President of the Transkei, acting on the advice of the Military Council, signed and assented to Decree No. 9 (Environmental Conservation) of 1992 (hereinafter referred to as “the Decree”). The Decree was published in a Special Gazette No. 51 (Volume 17) of 24 July 1992. It came into operation on 1 January 1993.

4. Section 1 of the Constitution of the Republic of South Africa, 1993 (Act No. 200 of 1993) (the interim Constitution) :

4.1 declared the Republic of South Africa as one sovereign state with its national territory comprising the areas defined in Part 1 of Schedule 1 thereof, inclusive of the Transkei; and

4.2 repealed the Status of Transkei Act.

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5. Section 229 of the interim Constitution provided that, subject to the Constitution, all laws which immediately before the commencement of the interim Constitution were in force in any area which forms part of the national territory, shall continue in force in such area, subject to any repeal or amendment of such laws by a competent authority.

6. Accordingly the Decree continued in force in the national territory formerly known as the Transkei.

B ORDERS IN THE MAGISTRATE’S AND HIGH COURTS

7. On 18 February 2010 and at Tsolo the Applicant was found to be in possession of the feet of a vulture carcass. She was charged in the Magistrate’s Court, Tsolo with contravening the provisions of section 13 (c) and 84 (13) of the Decree. She was found guilty as charged and sentenced to pay a fine of R4 000.00 or in default thereof to undergo imprisonment of twelve months, wholly suspended for a period of five years on certain conditions.

8. Not satisfied with her conviction and sentence, the Applicant appealed to the Eastern Cape Local Division of the High Court, Mthatha (“the Court a quo”). On 12 December 2013 the Court a quo :

8.1 upheld the appeal and set aside the conviction and sentence;

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8.2 declared sections 13 (c) and 84 (13) of the Decree to be inconsistent with sections 9, 10 and 35 of the Constitution and accordingly invalid;

and

8.3 referred the order of constitutional invalidity to this Court for confirmation “in terms of section 172 (2) (a) of the Constitution, 1996”.

C CONFIRMATION OF ORDER OF CONSTITUTIONAL INVALIDITY

9. Section 172 (2) (a) of the Constitution empowers the Supreme Court of Appeal, the High Court of South Africa or a Court of similar status to make an order concerning the constitutional validity of an Act of Parliament, a provincial Act or any conduct of the President. It furthermore provides that an order so made by any of the above Courts has no force unless it is confirmed by the Constitutional Court.

10. Accordingly, when the Court a quo referred its order of constitutional invalidity of sections 13 (c) and 84 (13) of the Decree to this Court it accepted that its order had no force until it was confirmed by the Constitutional Court.

11. In terms of section 172 (2) (a) of the Constitution the Constitutional Court will only confirm an order of constitutional invalidity if that order concerns the constitutional validity of :

11.1 an Act of Parliament;

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11.2 a provincial Act; or

11.3 any conduct of the President.

12. This case concerns neither an Act of Parliament nor any conduct of the President. The question is whether it concerns a provincial Act. In other words, is the Decree a provincial Act. If it is then the Constitutional Court may confirm the order of constitutional invalidity issued by the Court a quo. This Court will have no power to confirm the order of constitutional invalidity if the Decree is not a provincial Act.

D DOES THE DECISION IN MDODANA APPLY?

13. On 26 March 2014 this Court directed the parties to file written submissions on whether its decision in Mdodana v Premier of the Eastern Cape & Others [2014] ZACC 7 is applicable and, if so, whether the matter should still be heard by it. On 8 April 2014 the Applicant filed her written submissions wherein the submission is made that “the finding in Mdodana is not applicable to this case”.

14. The Second Respondent submits that the Mdodana decision is applicable to this matter and should accordingly not be heard by this Court. The basis for that submission is set out hereunder.

15. As at the commencement of the interim Constitution the Decree was of application in the then Transkei only. Item 2 (2)(a) of Schedule 6 of the new

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Constitution provides that older order legislation (legislation enacted before the interim Constitution took effect) does not have a wider application, territorially or otherwise, than it had before the interim Constitution took effect unless subsequently amended to have a wider application.

16. After the commencement of the interim Constitution the Decree was not amended to have a wider application.

17. In the premises, the Decree has application only in the territory previously known as the Transkei. It does not apply to the rest of the Eastern Cape Province.

18. The Nature and Environmental Conservation Ordinance, 1974 (19 of 1974) was promulgated on 21 February 1975. It commenced on 1 September 1975. It was of application in the territory known as the Cape Province (Cape of Good Hope) which included the present Eastern Cape, Western Cape and Northern Cape provinces. With effect from 17 June 1994 the administration of the Ordinance was assigned to competent authorities in the Eastern Cape, Northern Cape and Western Cape in terms of Proclamations 108, 111 and 115 published in Government Gazette 15813 of 17 June 1994. The Ordinance continues to apply in the entire Eastern Cape.

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19. Section 85 (k) of the Ordinance makes it an offence for a person to be found in possession of any wild animal or the carcase of any such animal if such person is unable to give a satisfactory account of such possession.

20. The Nature Conservation Act (Ciskei), 1987 (Act No. 10 of 1987) commenced on 25 September 1985. It was of application in the territory previously known as the Ciskei. The Ciskei attained “independence” from the Republic of South Africa during 1981. Except for Part 1 of Chapter 4, Chapters 6 and 7 and section 70 thereof, the Ciskei Nature Conservation Act was assigned to the Eastern Cape Province in terms of Proclamation 111 published in Government Gazette 15813 of 17 June 1994.

21. Section 72 (j) of the Ciskei Nature Conservation Act makes it an offence for a person to be found in possession of any wild animal or the carcase of a wild animal if such a person is unable to give a satisfactory account of such possession.

22. We have already dealt with the promulgation of the Decree. Section 13 (c) thereof provides that no person shall sell, buy, donate, receive as a donation or be in possession of the carcase of a protected wild animal.

23. In the circumstances, there is presently parallel legislation on the same subject (legislation relating to conservation, management and protection of fauna, flora and fish) in the territory of the Eastern Cape Province, namely :

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23.1 the Ordinance, applicable throughout the Eastern Cape Province;

23.2 the Ciskei Nature Conservation Act, applicable in the former Ciskei only; and

23.3 the Decree, applicable in the former Transkei only.

24. Dambuza AJ found in the Mdodana decision that, under similar circumstances, it was inappropriate to conclude that the Ordinance (in that case) is a provincial Act. It is submitted that the same reasoning applies in this case.

25. After the commencement of the interim Constitution there has been no express or tacit pronouncement by the Eastern Cape Provincial Legislature with the effect that the operation of the Decree was extended to the rest of the Eastern Cape Province.

25.1 Reference by the Applicant to the Justice Laws Rationalisation Act, 1996 (Act No. 18 of 1996) is not understood. What is certain is that, although that Act provided inter alia for the extension of the operation of certain laws to certain areas forming part of the national territory of the Republic of South Africa in substitution for certain other laws applied in those areas, the operation of the Decree was not extended by that Act to the rest of the Eastern Cape Province.

25.2 Bizana falls within the territory of the former Transkei. Section 93 (3)(a) of the Decree provides for the establishment of “any nature reserve on

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land owned by a local authority”. Acting in terms of the above section the relevant MEC, the Second Respondent herein, established the Bizana Nature Reserve. That establishment was published in the Provincial Gazette 376 of 23 February 1999.

25.3 It is submitted that reference to a Policy and the amendments in a Bill which “were not ultimately effected by Parliament” in paragraphs 19 and 20 of the Applicant’s submissions does not lend support to the Applicant’s submission on whether or not there has been any pronouncement by the Eastern Cape Provincial Legislature on the Decree.

25.4 In Eastern Cape Provincial Notice 4 of 2012 published in the Extraordinary Provincial Gazette 2690 of 27 January 2012 the relevant MEC, the Second Respondent herein, acting in terms of sections 18 and 20 of the Decree :

25.4.1 determined that there is no hunting season in the territory of the former Republic of Transkei in respect of all species listed in Schedules 1, 2, 3 and 4 of the Decree; and

25.4.2 restricted introduction into, removal from or transportation in or through the territory of the former Republic of Transkei any wild animal, with the exception of performing wild animal which its transportation must be arranged before the time in terms of the Decree.

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26. In the circumstances, although the relevant MEC acted in terms of the Decree in the above instances, it is submitted that :

26.1 neither he nor the Eastern Cape Provincial Legislature made an express pronouncement on the Decree; and

26.2 when the relevant MEC acted in terms of the Decree, the effect of his action was restricted to the territory of the former Transkei.

E CONCLUSION

27. In the circumstances, it is submitted that :

27.1 the Decree is not a provincial Act;

27.2 the Mdodana decision is applicable to this matter; and

27.3 this Court cannot enquire into the propriety of the order of constitutional invalidity issued by the Court a quo.

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G H BLOEM S.C.

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D YOUNG

Second Respondent’s Counsel

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LIST OF AUTHORITIES

Cases:

Mdodana v Premier of the Eastern Cape and others [2014] ZACC 7 and the cases referred to therein.

Legislation :

1. Status of Transkei Act, 1976 (Act No. 100 of 1976) 2. Decree No. 9 (Environmental Conservation) of 1992

3. Constitution of the Republic of South Africa, 1993 (Act No. 200 of 1993) 4. Constitution of the Republic of South Africa, (Act No. 108 of 1996) 5. Nature and Environmental Conservation Ordinance, 1974 (19 of 1974) 6. Nature Conservation Act (Ciskei), 1987 (Act No. 10 of 1987)

7. Proclamations 108, 111 and 115 published in Government Gazette 15813 of 17 June 1994

8. Justice Laws Rationalisation Act, 1996 (Act No. 18 of 1996)

9. Proc. No. 1 of 1999 published in the Eastern Cape Provincial Gazette No. 376 dated 23 February 1999

10. Eastern Cape Provincial Notice 4 of 2012 published in the Extraordinary Provincial Gazette 2690 of 27 January 2012