Prince v President, Law Society, Cape of Good Hope and Others

JurisdictionSouth Africa
JudgeChaskalson P, Langa DP, Ackermann J, Goldstone J, Kriegler J, Mokgoro J, Ngcobo J, O'Regan J, Sachs J, Yacoob J and Madlanga AJ
Judgment Date12 December 2000
Citation2001 (1) SACR 217 (CC)
Hearing Date16 November 2000
CounselJ L Abel for the appellant. J Slabbert for the fifth respondent.
CourtConstitutional Court

Ngcobo J:

Introduction

[1] G This matter comes to this Court by way of an appeal from the Supreme Court of Appeal (the SCA). This judgment addresses two H questions that arose during the hearing of the matter that need to be answered at this stage of the appeal. The first is whether there is sufficient evidence in the record to enable this Court to decide the constitutional issue presented; if not, whether this Court should call for further evidence. The second is whether the proceedings in the SCA were a nullity for lack of a quorum. I

Background

[2] The appellant, who alleges that he is a practising Rastafari, sought to register his contract of community service with the Law Society of the Cape of Good Hope (the Law Society), the second respondent in this J

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matter, as required by s 5(2) of the Attorneys Act, 1979. [1] The Law Society refused to register A his contract because the appellant had two previous convictions for possession of cannabis and had expressed his intention to continue using cannabis, as the practice of the Rastafari religion required him to. It took the view that a person who declares his intention to continue breaking the law is not a fit and proper person to be admitted as an attorney. B

[3] The appellant, in motion proceedings brought in the Cape of Good Hope High Court (the High Court), challenged the constitutionality of the decision of the Law Society, alleging that the decision infringed his rights to freedom of religion, to dignity, to pursue the profession of his choice and not to be the subject of unfair C discrimination. The Law Society took the view that as long as the possession and use of cannabis remained a criminal offence, and the appellant persisted in his intention to continue using cannabis, he could not be said to be a fit and proper person to be admitted as an attorney.

[4] In his heads of argument before the High Court, the appellant, D for the first time, raised the constitutionality of the Drugs and Drug Trafficking Act, 1992 (the Drugs Act), [2] which prohibits the use and possession of cannabis. [3] In view of this, it became necessary to serve the

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papers upon the Minister of Justice (the Minister) and the Attorney-General A of the Cape of Good Hope (the A-G), the fourth and fifth respondents respectively. Both applied for, and were granted, leave to intervene. Both resisted the application. In his affidavit, the A-G drew attention to the provisions of s 22A(10) of the Medicines and Related Substances Control Act, 1965 (the Medicines Act), [4] which contains a similar prohibition. [5] B

[5] It is apparent from the affidavit of the Minister that he intervened in his capacity as the member of Cabinet responsible for the administration of justice, because he considered it to be within his 'duties and responsibilities to take appropriate steps to ensure that C the persons involved in the administration of justice, particularly officers of the Courts of this country, are fit and proper persons' to be admitted as attorneys. Although the Minister sought to justify the Drugs Act, it is nevertheless clear from his affidavit that he did not consider it necessary to defend the constitutionality of that Act. He took the view that the constitutionality of s 4(b) of the Drugs Act was not in issue, as the D

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appellant had neither raised the issue in his founding affidavit nor A sought an order declaring it unconstitutional in his notice of motion. Although the A-G took a similar view to the Minister, he nevertheless went on to defend the constitutionality of the impugned provisions. On the issue of exemption for religious purposes, the A-G alleged that he 'would have grave practical difficulties in applying the Act' and that 'the situation could slip out of control'. No facts were put forward to substantiate B this bare allegation. The appellant made no attempt to supplement his papers so as to raise the constitutionality of the impugned provisions nor to amend his notice of motion to include an appropriate prayer declaring the impugned provisions unconstitutional and contented himself with the contentions made in his heads of argument. C

The judgment of the High Court

[6] The High Court found that the impact of s 4(b) of the Drugs Act was to limit the appellant's freedom to practise his religion. [6] However, it found that the limitation was justifiable in terms of s 36 of the Constitution. In concluding D that the limitation was justifiable, the High Court found, amongst other things, that a religious exemption for Rastafari 'would place an additional burden on the police and the courts, both of which are operating under heavy pressure because of the general crime situation in this country'. [7] It concluded that s 4(b) of the Drugs Act was not unconstitutional. It also E concluded that the same considerations applied to s 22A(10) of the Medicines Act. [8]

The judgment of the SCA

[7] With the leave of the High Court, the appellant appealed to the F SCA. To formalise the attack on s 4(b) of the Drugs Act and s 22A(10) of the Medicines Act, the SCA allowed the appellant to amend the notice of motion by inserting para 4, which reads:

'4(a) Declaring s 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 (as amended) ('the Drugs Act') and s 22A(10) of the Medicines and Related Substances Control Act 101 of 1965 ('the Medicines Act') to be inconsistent with the Constitution G of the Republic of South Africa, Act 108 of 1996 ('the Constitution') and accordingly invalid.

ALTERNATIVELY, declaring s 4(b) of the Drugs Act and s 22A(10) of the Medicines Act to be inconsistent with the Constitution, to the extent that they fail to provide an exemption applicable to the use, possession and transportation of cannabis sativa by a Rastafarian for a bona fide religious purpose, and accordingly invalid. H

(b) Suspending the aforesaid declarations of invalidity for a period of 12

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months from the date of confirmation of this order by the Constitutional Court to enable Parliament to correct the A inconsistencies which have resulted in the declarations of invalidity.'

[8] In the course of argument before the SCA it became clear that the appellant's constitutional challenge was directed only at the failure of the impugned provisions to allow for a religious exemption. The SCA found that to allow for a religious exemption would undermine B the purpose of the Drugs Act and the Medicines Act to prevent drug abuse and to protect society as a whole. [9] In addition, and relying upon the allegation by the A-G, it found that it would be impossible to police the exemption. The SCA concluded that '[t]he alternative prayer cannot be granted in its present form and the available evidence does not enable [the court] to fashion a C suitable order with adequate precision'. [10] Consequently, the SCA dismissed the constitutional challenge. [11]

Proceedings in this Court

[9] With leave, the appellant appealed to this Court. In addition, D the appellant sought leave to have admitted certain material in terms of Rule 30 of the Constitutional Court Rules. [12] This material consists of reports [13] and editorials from two medical journals. [14] The President of this Court issued directions that the record in the appeal should consist of the record before the SCA and an affidavit by Professor Yawney, an associate professor of Anthropology in Canada who has written extensively E

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on Rastafari. [15] The A-G, who was the only respondent who appeared and filed written argument A in this Court, was given leave to file material in response to the affidavit by Professor Yawney. In addition, the parties were directed to address the issue of the relevance and admissibility of the material sought to be introduced by the appellant in their written heads of argument. In response to the affidavit by Professor Yawney, B the A-G submitted a number of documents. He objected to the admission of some of the material filed by the appellant in terms of Rule 30. It is not clear precisely to which material the objection related as the A-G also said that the contents of some of the material to which he objected provided useful information. Indeed, in his written argument, the A-G relied upon some of that material. C

Issues on appeal

[10] In this Court, the appellant contended that s 4(b) of the Drugs Act and s 22A(10) of the Medicines Act are unconstitutional to the extent that they do not exempt from prohibition the use, possession and transportation of cannabis for bona D fide religious purposes by adult Rastafari. The A-G approached the matter on the footing that the impugned provisions limit the appellant's rights to practise his religion, but contended nevertheless that such limitation is justifiable under s 36 of the Constitution. He contended, amongst other things, that there would be grave difficulties in policing such an exemption. E

[11] Should the Court find that any of these provisions limit the rights to religious freedom, one of the key questions which will have to be decided is whether a religious exemption to Rastafari would undermine the government's efforts to fight drug abuse and trafficking. In particular, the Court will have to decide whether there will be practical difficulties in policing such exemptions, and if so, F whether they justify the denial of the religious exemption.

[12] To answer the constitutional question presented in this appeal, it is necessary to have information on how, where, when and by whom cannabis is used within the Rastafari religion in South Africa, how cannabis is obtained and whether the religion regulates the use and G possession of cannabis by its members. There is no evidence currently on the record concerning the institution of the Rastafari religion in South Africa, including whether there are different...

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59 practice notes
  • Mohunram and Another v National Director of Public Prosecutions and Another (Law Review Project as Amicus Curiae)
    • South Africa
    • Invalid date
    ...and Others 2003 (1) SACR 561 (CC) (2003 (4) SA 1; 2003 (5) BCLR 476): referred to I Prince v President, Cape Law Society, and Others 2001 (1) SACR 217 (CC) (2001 (2) SA 388; 2001 (2) BCLR 133): referred to Prophet v National Director of Public Prosecutions 2005 (2) SACR 670 (SCA) (2006 (1) ......
  • S v Shaik and Others
    • South Africa
    • Invalid date
    ...2006 (1) SACR 78 (CC) D (2006 (1) SA 505; 2006 (2) BCLR 274): referred to Prince v President, Cape Law Society, and Others 2001 (1) SACR 217 (CC) (2001 (2) SA 388; 2001 (2) BCLR 133): dictum in para [31] Prince v President, Cape Law Society, and Others 2002 (1) SACR 431 (CC) (2002 (2) SA 79......
  • Mohunram and Another v National Director of Public Prosecutions and Another (Law Review Project as Amicus Curiae)
    • South Africa
    • Invalid date
    ... ... in an instrumental manner asexamples to others if the deterrence is set at levels beyond what is ... , Gauteng,and Others (KwaZulu-Natal Law Society and Msunduzi Municipality asAmici Curiae) 2005 ... ; 2003 (5) BCLR 476):referred toPrince v President, Cape Law Society, and Others 2001 (2) SA 388 ... of this kind before theCourt.[32] In Prince v President, Cape Law Society, and Others this ... Nor can parties hope to supplement and make their case on ... and the health, safety,general welfare and good order of the inhabitants of the province through ... ...
  • S v Shaik and Others
    • South Africa
    • Invalid date
    ...SA 505 (CC) (2006 (1) SACR 78; 2006 (2) BCLR 274): referred to Prince v President, Cape Law Society, and Others 2001 (2) SA 388 (CC) (2001) (1) SACR 217; 2001 (2) BCLR 133): dictum in para [31] Prince v President, Cape Law Society, and Others 2002 (2) SA 794 (CC) (2002 (1) SACR 431; 2002 (3......
  • Request a trial to view additional results
58 cases
  • Mohunram and Another v National Director of Public Prosecutions and Another (Law Review Project as Amicus Curiae)
    • South Africa
    • Invalid date
    ...and Others 2003 (1) SACR 561 (CC) (2003 (4) SA 1; 2003 (5) BCLR 476): referred to I Prince v President, Cape Law Society, and Others 2001 (1) SACR 217 (CC) (2001 (2) SA 388; 2001 (2) BCLR 133): referred to Prophet v National Director of Public Prosecutions 2005 (2) SACR 670 (SCA) (2006 (1) ......
  • S v Shaik and Others
    • South Africa
    • Invalid date
    ...2006 (1) SACR 78 (CC) D (2006 (1) SA 505; 2006 (2) BCLR 274): referred to Prince v President, Cape Law Society, and Others 2001 (1) SACR 217 (CC) (2001 (2) SA 388; 2001 (2) BCLR 133): dictum in para [31] Prince v President, Cape Law Society, and Others 2002 (1) SACR 431 (CC) (2002 (2) SA 79......
  • Mohunram and Another v National Director of Public Prosecutions and Another (Law Review Project as Amicus Curiae)
    • South Africa
    • Invalid date
    ... ... in an instrumental manner asexamples to others if the deterrence is set at levels beyond what is ... , Gauteng,and Others (KwaZulu-Natal Law Society and Msunduzi Municipality asAmici Curiae) 2005 ... ; 2003 (5) BCLR 476):referred toPrince v President, Cape Law Society, and Others 2001 (2) SA 388 ... of this kind before theCourt.[32] In Prince v President, Cape Law Society, and Others this ... Nor can parties hope to supplement and make their case on ... and the health, safety,general welfare and good order of the inhabitants of the province through ... ...
  • S v Shaik and Others
    • South Africa
    • Invalid date
    ...SA 505 (CC) (2006 (1) SACR 78; 2006 (2) BCLR 274): referred to Prince v President, Cape Law Society, and Others 2001 (2) SA 388 (CC) (2001) (1) SACR 217; 2001 (2) BCLR 133): dictum in para [31] Prince v President, Cape Law Society, and Others 2002 (2) SA 794 (CC) (2002 (1) SACR 431; 2002 (3......
  • Request a trial to view additional results
1 books & journal articles
  • Recent Case: Constitutional application
    • South Africa
    • Juta South African Criminal Law Journal No. , May 2019
    • 24 May 2019
    ...was needed (at 543j- 544a). Interpretation —s168 (2) of the Constitution In Prince v President, Law Society, Cape of Good Hope 2001 (1) SACR 217 (CC), a matter came before the Constitutional Court by way of appeal from the Supreme Court of Appeal. One of the issues raised was whether the pr......

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