The Baziya Mountains, Transkei, the Transkeian Penal Code permitted was that a person accused of attempted murder can be found guilty of and imprisoned for actual murder.Image: File
Steps have been taken to flush out remnants of colonial and apartheid-era laws that can still be applied in the former Transkei.
The South African Law Reform Commission (SALRC) has recommended that the Transkeian Penal Code be wholly repealed and replaced with laws that are generally applicable in South Africa.
“The Transkeian Penal Code … is a relic of our past whose provenance can be traced to a bill drafted as a code of English law,” said the SALRC in its discussion paper detailing its proposals.
“The Code was intended to consolidate criminal law in the area formerly known as the Republic of Transkei.
“Although the Republic of Transkei has ceased to exist, the Code has been retained in the statute book by virtue of item 2 of Schedule 6 of the Constitution and continues to regulate criminal law alongside common law and a myriad old-order and post-1994 legislation.
“The continued application of the Code has created an untenable situation which, it has been argued, can only be resolved by Parliament.”
This meant the National Prosecuting Authority currently had powers to apply homeland laws when charging an accused person in the former Transkei communities.
An example of the charges that the Transkeian Penal Code permitted was that a person accused of attempted murder can be found guilty of and imprisoned for actual murder.
“Section 31 of the Code provides that any person who attempts to commit an offence shall be guilty of an offence and liable on conviction to punishment as if he had actually committed such offence,” said the SALRC’s discussion paper.
“Interpreted literally, this provision means that if an accused person tried to kill X by shooting him but missed, such a person must be charged with and be convicted of murder.
“In contrast to this provision of the Code, the Criminal Procedure Act (applicable all over the country) provides that if the evidence in criminal proceedings does not prove the commission of the offence charged but proves an attempt to commit that offence … the accused may be found guilty of an attempt to commit that offence or, as the case may be, such other offence,” the paper added.
“Clearly there is inconsistency between the law that applies to the rest of the Republic and the law that applies in the (territory) formerly known as the Transkei in relation to the competent verdict on a charge of attempt to commit an offence. The SALRC therefore recommends that section 31 of the Code be repealed.”
Former Judge President of the Eastern Cape High Court, Cecil Somyalo, proposed the repeal of the Code in 2005. He formally approached the Justice Department that year with the proposal.
“In support of his proposal, he stated that the Code was a relic of the past. It was inconsistent with legislation that is applicable to the rest of South Africa; and that it was probably unconstitutional,” said the SALRC.
The public has until July 31, 2022 to comment on the proposals.
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