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Johannesburg - An Eastern Cape traditional healer convicted for possession of two vulture feet used to produce traditional medicine for protecting clients against theft, is heading to the Constitutional Court to fight a 22-year-old Transkei statute under which she was prosecuted.
Nokhanyo Khohliso wants the country’s highest court to confirm an order of the Eastern Cape High Court in Mthatha, which found that Environmental Conservation Decree No 9 of 1992 is inconsistent with the constitution and declared it invalid.
In December, Judges Nozuko Mjali and Robert Griffiths found the decree violated Khohliso’s right to equality and human dignity and her rights as an arrested, detained and accused person.
Judges Mjali and Griffiths said the differentiation between people in the former Transkei and the rest of the Eastern Cape was for no legitimate government purpose and amounted to unfair discrimination that could not be justified under the constitution.
Khohliso was arrested in Tsolo, Eastern Cape in February 2010 and had no permit to possess the two vulture’s feet.
In terms of the decree, vultures are a protected species and anyone found in possession of any part of the bird is guilty of an offence.
The decree also states that claiming to have no knowledge of it or that one did not act wilfully is not a defence, which the judges found erodes Khohliso’s right to a fair trial and to be presumed innocent until proven guilty.
She was convicted in terms of the decree, passed in 1992 when the bantustan’s president was King Tutor Nyangelizwe Ndamase acting on the advice of the military council led by then Major-General Bantu Holomisa.
Khohliso was fined R4 000 or, if in default, 12 months’ imprisonment wholly suspended for five years on condition she was not convicted of contravening the decree.
She trained as a traditional healer in 1994 and was taught to mix traditional medicines using animal parts and birds. Khohliso told the high court she was never informed of the existence of any prohibition with regards to possession of certain species of animals and birds.
In written submissions to the Concourt, Khohliso’s counsel Lilla Crouse said the areas that now make up the Eastern Cape (Ciskei, Transkei and the Eastern Province) are treated separately and differently in the annual publication of provincial notices for hunting seasons.
Crouse says the decree should be regarded as a provincial act and the Concourt should make a final ruling on its constitutionality.
In March, the Concourt dismissed an application by Eastern Cape farmer Mphithikezi Mdodana to declare the Pounds Ordinance of 1938 unconstitutional as it allowed arbitrary impounding of stray animals by municipalities without notifying stockowners.
The Concourt said the ordinance was not a provincial act and therefore it had no jurisdiction to confirm declaration of invalidity granted by Eastern Cape High Court Judge John Smith last June.
Eastern Cape Finance, Economic Development, Environmental Affairs and Tourism MEC Sakhumzi Somyo, who is responsible for the decree, argues the Mdodana judgment is applicable in Khohliso’s case and that the Concourt should not hear the matter.
Somyo also says the decree is not a provincial act.
However, Crouse says the Concourt should hear the matter, find the decree has the status of a provincial act and make a decision on the Mthatha High Court’s finding of unconstitutionality.
But Somyo argues: “The decree has application only in the territory previously known as the Transkei. It does not apply to the rest of the Eastern Cape.”
In his submission to the Concourt, Somyo says the country’s highest court cannot enquire into the propriety of the Mthatha High Court’s order of constitutional invalidity.
Somyo says neither he nor the provincial legislature have pronounced on the decree and when he has acted the effect of his action has been restricted to the territory of the former Transkei.
Khohliso’s matter will be heard by the Concourt on August 21.