Khohliso v S (86/2011, A790/10) [2013] ZAECMHC 36; 2014 (2) SACR 49 (ECM) (12 December 2013)

Khohliso v S (86/2011, A790/10) [2013] ZAECMHC 36; 2014 (2) SACR 49 (ECM) (12 December 2013)

Sections 13(c) and 84(13) of Decree No 9 of 1992 differentiate between residents of the former Transkei and the rest of the Eastern Cape, resulting in unfair discrimination that cannot be justified under section 36 of the Constitution. The strict liability imposed by section 84(13) further infringes the right to a fair trial and the presumption of innocence. The court found no rational connection between the legislative differentiation and any legitimate government purpose. The impugned sections are inconsistent with sections 9, 10, and 35 of the Constitution and are declared invalid. The conviction and sentence are set aside, and the matter is referred to the Constitutional Court for...

Citation
[2013] ZAECMHC 36
Parties
Appellant: Nokhanyo Khohliso; Respondent: The State; Respondent: The MEC, Economic Development, Tourism and Environmental Affairs
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
12 December 2013
Case Number
86/2011, A790/10
Procedural Posture
Criminal Appeal / Appeal Against Conviction Only
Outcome
Appeal upheld; conviction and sentence set aside; impugned sections declared invalid and referred to the Constitutional Court for confirmation.
Judges
G N Z Mjali, Griffiths
Legal Topics
Equality Clause, Strict Liability, Nature Conservation, Bill of Rights Limitation, Presumption of Innocence, Territorial Legislative Disparity
Constitutional Law Criminal Law Environmental Law Equality Clause Strict Liability Nature Conservation Bill of Rights Limitation Presumption of Innocence +1 more

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Parties

Nokhanyo Khohliso

Appellant

The State

Respondent

The MEC, Economic Development, Tourism and Environmental Affairs

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction Only

Legal Issues

  1. 1 Whether sections 13(c) and 84(13) of Decree No 9 of 1992 are constitutionally valid.
  2. 2 Whether the differentiation between residents of the former Transkei and the rest of the Eastern Cape constitutes unfair discrimination.
  3. 3 Whether strict liability under section 84(13) infringes the right to a fair trial and presumption of innocence.

Ratio Decidendi

Sections 13(c) and 84(13) of Decree No 9 of 1992 differentiate between residents of the former Transkei and the rest of the Eastern Cape, resulting in unfair discrimination that cannot be justified under section 36 of the Constitution. The strict liability imposed by section 84(13) further infringes the right to a fair trial and the presumption of innocence. The court found no rational connection between the legislative differentiation and any legitimate government purpose. The impugned sections are inconsistent with sections 9, 10, and 35 of the Constitution and are declared invalid. The conviction and sentence are set aside, and the matter is referred to the Constitutional Court for...

Court Disposition

Appeal upheld; conviction and sentence set aside; impugned sections declared invalid and referred to the Constitutional Court for confirmation.

Orders

  • The appeal is upheld. The conviction and sentence imposed on the appellant are set aside.
  • Sections 13(c) and 84(13) of Decree No 9 of 1992 (Tkei) are inconsistent with sections 9, 10 and 35 of the Constitution of the Republic of South Africa, 1996, and are thus declared to be invalid.