LEGAL PLURALISM IN SOUTH AFRICA: THE RESILIENCE OF TRANSKEI’S SEPARATE LEGAL STATUS IN THE FIELD OF CRIMINAL LAW

Abstract

The Transkei Penal Code was enacted by the parliament of the Cape of Good Hope as Act 24 of 1886. It was part of the mechanisms devised for governance of the area between the Kei River in the west and the Mtamvuma river on the Natal border, and to which the name Transkei was given. It was drawn up by lawyers trained in English law and it therefore watered down the influence of Roman-Dutch law in the Transkei region of South Africa.
The code exerted enormous influence on South African law itself. As a result the judges of the Supreme Court of South Africa (as it then was) in numerous cases heard in different parts of South Africa, repeatedly said that the South African law on a point in issue was as laid down in the Transkei Penal Code. The power of the Penal Code continued to be evident in Appellate Division decisions as recently as 1988. When Transkei became independent (in 1976) she revised the code and passed the Transkei Penal Code Act 9 of 1983. More than ten years after the reincorporation of Transkei into the new South Africa this Code remains of full force and effect. In 2004 an effort by the National Directorate of Public Prosecutions to have criminal charges in Transkei framed under the common law and no longer under the Code, was thwarted by the Transkei High Court which ruled that only an Act of Parliament could alter the position.