Prince v President, Cape Law Society, and Others

• Jurisdiction: South Africa
• Judge: Chaskalson CJ, Ackermann J, Goldstone J, Kriegler J, Mokgoro J, Ngcobo J, Sachs J, Yacoob J and Madlanga AJ
• Judgment Date: 25 January 2002
• Docket Number: CCT 36/2000
• Hearing Date: 17 May 2001
• Counsel: J L Abel for the appellant. No appearance for the first to third respondents. V V W Duba for the fourth respondent. J Slabbert for the fifth respondent.
• Court: Constitutional Court

Ngcobo J:

Introduction E

[1] Mr Garreth Prince, the appellant, wishes to become an attorney. He has satisfied all the academic requirements for admission as such. [1] The only outstanding requirement is a period of community service which he is required to perform in terms of s 2A(a)(ii) of the Attorneys Act. [2] In an application to register his contract of community service with F the Law Society of the Cape of Good Hope (the Law Society), the second respondent, as required by s 5(2) of the Attorneys Act, [3] the appellant not only disclosed that he had two previous convictions for possession of cannabis sativa (cannabis) [4] but also expressed his intention to continue using cannabis. He stated that the use of cannabis was inspired by his Rastafari religion. G

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[2] The Law Society declined to register his contract of community service. It took the view that a person who, while having two A previous convictions for possession of cannabis, declares his intention to continue breaking the law, is not a fit and proper person to be admitted as an attorney. [5] In the view of the Law Society, as long as the prohibition on the use or possession of cannabis remains on the statute books, the appellant will consistently break the law and this will bring the attorneys' profession into B disrepute.

[3] Cannabis is a dependence-producing drug, the possession or use of which is prohibited by the law, subject to very few exceptions that do not apply to the appellant. The appellant unsuccessfully challenged the constitutionality of this prohibition, C both in the Cape of Good Hope High Court (the High Court) [6] and later in the Supreme Court of Appeal (the SCA). [7] Hence this appeal.

[4] This appeal concerns the constitutional validity of the prohibition on the use or possession of cannabis when its use or possession is inspired by religion. The appellant does not dispute that D the prohibition serves a legitimate government interest. We are therefore not called upon to decide whether cannabis should be legalised or not. The constitutional complaint is that the prohibition is bad because it goes too far, bringing within its scope possession or use required by the Rastafari religion. E

[5] The appeal is resisted by the Attorney-General and the Minister of Health. The Law Society and the Minister of Justice abide by the decision of the Court.

History of litigation F

[6] When the litigation commenced in the High Court, the appellant challenged the constitutionality of the decision of the Law Society, alleging that it infringed his rights to freedom of religion, [8] to dignity, [9] to pursue the profession of his choice, [10] and not to be subjected to unfair discrimination. [11] He sought an order reviewing and setting aside the decision of the Law G Society refusing to register his contract of community service and directing the Law Society to register his contract with effect from 15 February 1997. However, by the time the matter reached

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this Court, the appellant had broadened his constitutional challenge to A include a challenge to s 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 (the Drugs Act) [12] and s 22A(10) of the Medicines and Related Substances Control Act 101 of 1965 (the Medicines Act). [13] It is this challenge that led to the intervention of the Minister of Justice, the Minister of Health and the Attorney-General. B

[7] This matter first came before this Court in November 2000. [14] As the focus of the challenge had been on the decision of the Law Society, there was insufficient information on record to determine the constitutionality of the impugned provisions. After extensive argument, the parties were granted leave to submit further evidence in the form of affidavits. The appellant was C directed to deal, amongst other things, with the circumstances under which Rastafari use cannabis, while the respondents were directed to respond to appellant's evidence and, in addition, deal with practical problems that may arise from the granting of a religious exemption. On that occasion the Court made an order which, in pertinent D part, reads:

'2.

The appellant is granted leave to deliver, on or before 24 January 2001, evidence on affidavit setting out:

(a)

how, where, when and by whom cannabis is used within the Rastafari religion in South Africa; E

(b)

how cannabis is obtained by Rastafari;

(c)

whether the Rastafari religion regulates the use and possession of cannabis by its members;

(d)

whether there are any internal restrictions on, and supervision of, the use of cannabis by members of the Rastafari F religion; and

(e)

any other facts relating to the matters set forth in paras [12] - [17] of the judgment.

3.

The respondents are granted leave to deliver, on or before 14 February 2001, evidence on affidavit setting out: G

(a)

their response, if any, to the evidence submitted by the appellant;

(b)

what practical difficulties, if any, will be encountered if an exemption for the sacramental use of cannabis is allowed; and H

(c)

how a religious exemption for the personal use of cannabis would differ, in its administration and the overall enforcement of the Drugs and Drug Trafficking Act 140 of 1992 and the Medicines and Related Substances Control Act 101 of

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1965, from the medical and scientific exemptions currently to be found in A s 4(b) of the Drugs Act and s 22A(10) of the Medicines Act, if at all.' [15]

[8] Pursuant to that order the parties have submitted a considerable body of additional factual and opinion material.

Preliminary issues B

[9] Before addressing the merits of the appeal it is necessary to dispose of two preliminary matters. The one is an application by the appellant to have certain material admitted in terms of Rule 30 and the other is an application by the Attorney-General to submit further evidence. C

(a) The Rule 30 application

[10] Rule 30 [16] permits any party on appeal 'to canvass factual material which is relevant to the determination of the issues before the Court and which do not specifically appear on the record'. However, this is subject to the condition that such facts 'are common cause or otherwise D incontrovertible' or 'are of an official, scientific, technical or statistical nature capable of easy verification'. The Rule has no application where the facts sought to be canvassed are disputed. [17] A dispute as to facts may, and if genuine usually will, demonstrate that the facts are not 'incontrovertible' or 'capable of easy verification'. If that be the case, the dispute will in effect render the material inadmissible. E Ultimately, the admissibility depends on the nature and the substance of the dispute.

[11] The material which the appellant seeks to have admitted deals with the potential health benefits and risk of cannabis; investigates the non-medical use of cannabis; and includes a comparative analysis of the relative harm caused by cannabis, alcohol F and tobacco. [18] Some of its contents are not free from controversy if viewed against the evidence on

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the effect of cannabis filed on behalf of the Attorney-General. Apart from this, the A material is not relevant to the central question in this appeal, namely, whether the impugned provisions are constitutionally invalid by reason of their failure to allow for an exemption for the religious use or possession of cannabis by Rastafari. It follows, therefore, that this material cannot be admitted under Rule 30. B

(b) Application to introduce further evidence on appeal

[12] In this Court, the appellant applied for and was granted leave to introduce the evidence of Professor Carole Diane Yawney who has written extensively on the cultural and religious practices of the Rastafari. [19] The affidavit of Professor Yawney C deals with the nature and practice of the Rastafari religion and the importance of the use of cannabis in that religion. The Attorney-General did not object to the introduction of this affidavit. He was given leave to respond to the allegations contained in it. He did not challenge its contents as they relate to the Rastafari D religion, and the use and the importance of cannabis in that religion.

[13] The Attorney-General seeks leave to introduce five affidavits by American physicians and experts on drugs as a response to the affidavit of Professor Yawney. The appellant's objection to the admission of such material is not without merit. The affidavits that E the Attorney-General seeks to introduce deal with the harmful effects of cannabis. They therefore go beyond the allegations made by Professor Yawney. Apart from this, on the evidence of Dr Zabow and Professor Ames, it is common cause that cannabis is a harmful drug and that its harmful effects are cumulative and dose-related. The affidavits sought F to be introduced by the Attorney-General do not suggest otherwise. They therefore add nothing. On the contrary some appear to contradict certain aspects of the Attorney-General's case. Indeed it appears from these affidavits that the gateway theory relied upon by the Attorney-General is disputed by other experts. For all these reasons G the affidavits sought to be introduced by the Attorney-General should not be received. [20]

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[14] With that prelude, I now turn to the merits of the appeal. A

Background to the Rastafari religion

[15] At the centre of this appeal is a practice of the Rastafari religion that requires its adherents to use cannabis. It is not in dispute that Rastafari is a religion that is protected by ss 15 and 31 of our Constitution. The Rastafari religion has been in existence for B more than 70 years. Although it is said to have its origin in Jamaica, its origin is also linked to Ethiopia. It...