Johannesburg - The Constitutional Court on Tuesday found that an environmental conservation decree pertaining to the former Transkei is not a provincial act.
“Accordingly, Decree No 9 is not a provincial act and this court is not required to confirm the high court's order,” Judge Johann van der Westhuizen said in a unanimous ruling.
Traditional healer Nokhanyo Khohliso from the former Transkei (now part of the Eastern Cape) was convicted in the Tsolo Magistrate’s Court of possession of two vulture’s feet, in violation of the decree.
She successfully appealed her conviction in the Mthatha High Court, which found provisions of the decree unconstitutional.
The Constitution provides that the Constitutional Court must confirm any order of invalidity granted by a high court concerning a provincial act, an act of Parliament, or the conduct of the president, before it can be enforced.
Khohliso approached the Constitutional Court to confirm the high court’s ruling, contending that the decree was a provincial act which needed to be confirmed.
However, the Eastern Cape economic development and environmental affairs MEC submitted that the Constitutional Court did not have to confirm the invalidity because the decree did not constitute a provincial act.
“In this case there was no endorsement of Decree No 9 by the Eastern Cape provincial legislature,” Van der Westhuizen said in his ruling.
“The origin of the decree was also not provincial, as it was passed by a so-called independent republic.”
He said the order by the high court, therefore, had immediate effect from the date it was granted.
Sapa