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Nokhanyo Khohliso v S

País/Territorio
Sudáfrica
Tipo de la corte
Nacional - corte inferior
Fecha
Dic 2, 2014
Fuente
UNEP, InforMEA
Nombre del tribunal
Eastern Cape High Court
Idioma
Inglés
Materia
Especies silvestres y ecosistemas
Resumen
Ms Khohliso, a traditional healer from Tsolo in the former Transkei was convicted by the Tsolo Magistrates’ Court for the possession of a pair of vulture feet in contravention of section 13(c) read with section 84(13) of the Transkei’s Decree 9 of 1992. Section 13(c) of the Decree provided that no person shall (without the requisite permission) sell, buy, donate, receive as a donation or be in possession of any carcass of a protected wild animal (i.e. a vulture). Section 84(13) creates strict liability for non-compliance with the above, stipulating that lack of knowledge of any fact, or to say that one did not act wilfully could not be used as a defence. It follows that once it is shown that a person is in possession of such carcass, that person is automatically criminally liable, regardless of whether or not he or she knew or ought reasonably to have known that this possession was unlawful. As part of her traditional training, Ms Khohliso was never informed that possession of certain species, such as vulture’s feet, was prohibited by law. Counsel for Ms Khohliso argued, and the Court agreed, that Section 13(c) read with section 84(13) of the Decree eroded Ms Khohliso’s Constitutional right to a fair trial in that it negated the requirement of guilty knowledge. The essence of the argument being that to deprive a person of a defence, and accordingly of her freedom, in circumstances where that person did not know, and could not reasonably have been expected to know, that her actions were prohibited, offends against the right to a fair trial and more specifically the right to be presumed innocent. Judgement: The High Court overturned the conviction. (Provided by: UNODC SHERLOC)
Texto completo
www.unodc.org