Prince v President, Cape Law Society, and Others

• Jurisdiction: South Africa
• Citation: 2002 (2) SA 794 (CC)

Prince v President, Cape Law Society, and Others
2002 (2) SA 794 (CC)

2002 (2) SA p794

Citation	2002 (2) SA 794 (CC)
Case No	CCT 36/2000
Court	Constitutional Court
Judge	Chaskalson CJ, Ackermann J, Goldstone J, Kriegler J, Mokgoro J, Ngcobo J, Sachs J, Yacoob J and Madlanga AJ
Heard	May 17, 2001
Judgment	January 25, 2002
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.

Flynote : Sleutelwoorde H

Constitutional law — Legislation — Validity of — In democratic society Legislature has power and duty to enact legislation prohibiting conduct I considered by it to be anti-social and enforce that prohibition by criminal sanctions — In doing so it has to act consistently with Constitution of the Republic of South Africa Act 108 of 1996 — If it does that, courts have to enforce laws whether they agree with them or not. J

2002 (2) SA p795

Constitutional law — Human rights — Right to freedom of religion in terms of s 15(1) of Constitution of the Republic of South Africa Act 108 of A 1996 — Rastafari seeking exemption from legislation prohibiting possession of cannabis — Use made of cannabis by Rastafari cannot be sanctioned without impairing State's ability to enforce its legislation in interests of public at large and to honour its international obligation to do so — Failure to make provision for exemption in respect of possession and use of cannabis by Rastafari B thus reasonable and justifiable under Constitution.

Attorney — Candidate attorney — Community service — Law society refusing to register contract of community service because of candidate attorney's stated intention of persisting in use of dagga (cannabis sativa) — Candidate attorney (appellant) member of C Rastafarian religion — Appellant seeking exemption from legislation prohibiting possession of cannabis — Use made of cannabis by Rastafari cannot be sanctioned without impairing State's ability to enforce its legislation in interests of public at large and to honour its international obligation to do so — Failure to make provision for exemption in respect of possession and use of cannabis by Rastafari thus reasonable and justifiable under Constitution — Appeal against D dismissal of application for review of Law society's refusal to register contract and dismissal of appeal to Supreme Court of Appeal dismissed.

Religion — Rastafarianism — Rastafarianism a religion — Legislation prohibiting possession and use of cannabis trenches upon religious practices of Rastafari — However, such justifiable under s 36 of the E Constitution of the Republic of South Africa Act 108 of 1996.

Headnote : Kopnota

The appellant had applied to the first respondent for his contract of community service to be registered as part of the process to being admitted as an attorney. The first respondent had declined F to do so on the basis that the appellant had two previous convictions for the possession of dagga and had expressed his intention, as a Rastafarian, to possess the same in the future. The appellant then approached a High Court for an order setting aside the decision of the first respondent. The appellant was unsuccessful. The appellant then appealed, again unsuccessfully, to the Supreme Court of Appeal. With the required leave the appellant approached the Constitutional G Court. By the time the matter reached that Court the material dispute was whether s 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 and s 22A of the Medicines and Related Substances Control Act 101 of 1965 were in conflict with the Constitution of the Republic of South Africa Act 108 of 1996, in that they infringed, inter alia, the appellant's right to freedom of religion in terms of H s 15(1) of the Constitution by not granting an exemption to Rastafari to possess and use dagga for religious purposes.

Held, that Rastafarianism was a religion and the disputed legislation prohibiting the possession and use of cannabis trenched upon the religious practices of Rastafari. What had to be decided in the present case was whether that limitation was justifiable under s 36 of the Constitution. (Paragraphs [97] and [111] at 832C/D - D I and 835I - I/J.)

Held (per Chaskalson CJ, Ackermann J and Kriegler J, Goldstone J and Yacoob J concurring), that in a democratic society the Legislature had the power and, where appropriate, the duty to enact legislation prohibiting conduct considered by it to be anti-social and, where necessary, to enforce that prohibition by criminal sanctions. In doing so it had to act consistently with J

2002 (2) SA p796

the Constitution, but, if it did that, courts had to enforce the laws whether they agreed with them or not. (Paragraph A [108] at 835C - D.)

Held, further, that the fact that certain of the uses to which cannabis was put by Rastafari were not harmful was not sufficiently significant. Subject to the limits of self-discipline, the use might or might not be harmful, but that held also for non-Rastafarians who were prohibited from using or possessing cannabis, even if they used it sparingly and without harming themselves. B (Paragraph [118] at 837G/H - H/I.)

Held, further, that cannabis was a drug in which there was a substantial illicit trade which existed within South Africa and internationally. Moreover, the use to which cannabis was put by Rastafari was not simply the sacramental or symbolic consumption of a small quantity at a religious ceremony. It was used communally and privately, during religious ceremonies when two or more Rastafari came C together, and at other times and places. According to his own evidence, the appellant used cannabis regularly at his home and elsewhere. All that distinguished his use of cannabis from the general use that was prohibited was the purpose for which he used the drug and the self-discipline that he asserted in not abusing it. (Paragraph [129] at 841D - F.)

Held, further, that there was no objective way in which a law enforcement official could distinguish between the use of cannabis D for religious purposes and the use of cannabis for recreation. It would be even more difficult, if not impossible, to distinguish objectively between the possession of cannabis for the one or the other of the above purposes. Nor was there any objective way in which a law enforcement official could determine whether a person found in possession of cannabis, who said that it was possessed for religious E purposes, was genuine or not. Indeed, in the absence of a carefully controlled chain of permitted supply, it was difficult to imagine how the island of legitimate acquisition and use by Rastafari for the purpose of practising their religion could be distinguished from the surrounding ocean of illicit trafficking and use. (Paragraph [130] at 841F - H.)

Held, further, that the right to freedom of religion was a right enjoyed by all persons. The right embraced religions, big and F small, new and old. If an exemption in general terms for the possession and use of harmful drugs by persons who did so for religious purposes were to be permitted, the State's ability to enforce its drug legislation would be substantially impaired. (Paragraph [132] at 842C - D.)

Held, further, that there would be practical difficulties in enforcing a permit system. They included the financial G and administrative problems associated with setting up and implementing any such system, and the difficulties in policing that would follow if permits were issued sanctioning the possession of cannabis for religious purposes. Bearing in mind the looseness of the structures of the Rastafari and the fact that ten per cent or more of the Rastafari in South Africa did not belong to a House, the administration and H enforcement of a permit system in such circumstances would clearly have presented many problems. (Paragraphs [134] and [137] at 842G/H - H/I and 843D - F.)

Held further, that the religious use of cannabis could not be equated to medical use. It would have exposed Rastafari to the same harm as others were exposed to by using cannabis, depending only on their self discipline to use it in ways that avoid such harm. Moreover, to make its use for religious purposes dependent upon a permit I issued by the State to 'bona fide Rastafari' would, in the circumstances of the present case, be inconsistent with the freedom of religion. It was the essence of that freedom that individuals had a choice that did not depend in any way upon the permission of the Executive. If cannabis could be possessed and used for religious purposes, that had to be so whether the Executive consented or J

2002 (2) SA p797

not, and whether the person concerned was a Rastafari or an adherent of some A other religion. Ensuring that the use of cannabis fell within the conditions of the permit would depend entirely upon the self-discipline of the holder and would not be amenable to State monitoring or control. (Paragraph [138] at 843F - I.)

Held, further that the use made of cannabis by Rastafari, in the circumstances, could not be sanctioned without impairing the State's ability to enforce its legislation in the B interests of the public at large and to honour its international obligation to do so. The failure to make provision for an exemption in respect of the possession and use of cannabis by Rastafari was thus reasonable and justifiable under our Constitution. (Paragraph [139] at 844A/B - B/C.)

Held, accordingly, that the question therefore was not whether the non-invasive use of cannabis for religious purposes would cause harm to the users, but whether permission given to Rastafari to C possess cannabis would undermine the general prohibition against such possession. It would. (Paragraph [141] at 844H - I.)

Held...