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

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Summary

Prince v President, Cape Law Society 2002 (2) SA 794 (CC)Facts Appellant is a practising Rastafari who sought to register his contract of community service with the Law Society of the Cape of Good Hope – he was refused due to two prior convictions for cannabis possession and an intention to continu...

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Prince v President, Cape Law Society 2002 (2) SA 794 (CC) Facts 

Appellant is a practising Rastafari who sought to register his contract of community service with the Law Society of the Cape of Good Hope – he was refused due to two prior convictions for cannabis possession and an intention to continue using it as his religion required. Stated that he could not be fit and proper due to this.

Issue 

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Whether s 4(b) of the Drugs and Drug Trafficking Act and s 22A(10) of the Medicines and Related Substances Control Act are unconstitutional to the extent that they do not exempt from the use of cannabis for religious purposes by adult Rastafari Whether such a limitation on the right to freedom of religion is justifiable under s 36

Principles Statutes 

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Cannabis listed in Part III of Schedule 2 to the Drugs Act as an undesirable dependenceproducing drug. Its use or possession is prohibited by s 4(b) of the Act with the exemption of medical purposes S 22A(10) of the Medicines Act prohibits the use or possession of cannabis except for research or analytical purposes. The Act does, however, make provision for the supply to the public (must be certified by experts, may only be sold to certain classes of persons)

Constitution  

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S 15(1) of the Constitution – everyone has the right to freedom of conscience, religion, thought, belief and opinion S 31(1)(a) of the Constitution – persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community…to enjoy their culture, practise their religion and use their language S 36(1) of the Constitution – the rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including – (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose

Majority Judgement Application Section 36 Analysis 

There is no objective way in which law enforcement could distinguish between the uses of cannabis religiously or recreationally. While the freedom of religion is an important right, such an exemption as is being sought would undermine the ability to enforce drug legislation

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There are practical difficulties in a potential permit system – financial and administrative. Also, the fact that the Rastafari is not a well-organised religion would exacerbate the practical difficulties Unable to agree with Ngcobo J that a limited exemption for non-invasive religious use of cannabis is a competent remedy based on the evidence – doesn’t meet appellant’s religious needs, no evidence that this would satisfy the Rastafari Houses (who aren’t a party to this case) Order – appeal is dismissed

Ngcobo J Judgement (Dissenting) Application 

Does the prohibition limit constitutional rights? o Undisputed that Rastafari is a religion, that the appellant is a follower of this religion and that cannabis use is central to the religion o The prohibition of cannabis requires Rastafari to choose between following their religion and complying with the law – thus limits the rights to practice

Is the Limitation Justifiable? 

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The nature of the right limited and the scope of limitation o The right to freedom of religion is one of the most important human rights, especially so in our constitutional democracy based on human dignity, equality and freedom – the protection of diversity is a hallmark of a free and open society and it recognises the inherent dignity of all human beings o Provisions criminalise the use of cannabis for everything except the exempted uses – fails to differentiate between those using it religiously and drug abusers. Essentially says that in the eyes of the law, Rastafari are criminals The importance of the limitation o The purpose is important as it seeks to prevent the harm caused by the abuse of dependence-producing drugs and to suppress the trafficking of those drugs – drug abuse is harmful to society Could a religious exemption be granted without undermining the purpose of the prohibition? o In the religion, cannabis is used in various ways (not confined to smoking) and various of these cannot be considered harmful (eg burning in incense) while others clearly are (eg smoking and eating) o There is no suggestion that the practical problems cannot effectively be regulated – suppression of illicit drugs does not require a blanket ban on the sacramental use of cannabis when it does not pose a risk of harm The policy aimed at preventing abuse of harmful drugs and trafficking, however, in the case of the Rastafari, this proceeds on the assumption that all uses of cannabis by them represent an unacceptable risk to society – ignores reality. This could certainly be less restrictive. Order – provisions declared unconstitutional

Sachs J Judgement (Dissenting) 

Agree with Ngcobo J, this judgement just adds observations

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In focusing on the state’s ability to enforce laws, the majority judgement unnecessarily subjects the Rastafari to a choice between their faith and the law Ngcobo J’s judgement shows the appropriate balancing and application of the principle of reasonable accommodation. His judgement also reflects the Constitutional obligation for the state to walk the extra mile, unlike the majority judgement. S 36 limitations are based on processes of balancing and proportionality – requires the maximum harmonisation of all competing considerations – while there are practical difficulties in enforcing, the Rastafari is a marginalised religious group in the country deserving of protection The case showcases the importance of the principle of reasonable accommodation – the case is not about whether or not we approve of the use of cannabis, whether we are believers or not, etc – the case is a call for tolerance...