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[2000] ZACC 28
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Prince v President of the Law Society of the Cape of Good Hope and Others (CCT36/00) [2000] ZACC 28; 2001 (2) SA 388 (CC); 2001 (2) BCLR 133 (CC); 2001 (1) SACR 217 (CC) (12 December 2000)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 36/00
GARRETH ANVER PRINCE Appellant
versus
THE PRESIDENT OF THE LAW
SOCIETY OF
THE CAPE OF GOOD HOPE First Respondent
THE LAW SOCIETY OF THE CAPE OF GOOD HOPE Second Respondent
THE
SECRETARY OF THE LAW SOCIETY OF
THE CAPE OF GOOD HOPE Third Respondent
THE MINISTER OF JUSTICE Fourth Respondent
THE ATTORNEY-GENERAL OF THE CAPE OF GOOD HOPE Fifth
Respondent
Heard on : 16 November 2000
Decided on : 12 December
2000
JUDGMENT
NGCOBO J:
Introduction
[1]
This matter comes to this
Court by way of an appeal from the Supreme Court of Appeal (the SCA). This
judgment addresses two 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.
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 matter, as required by section 5(2) of the Attorneys
Act,
1979.
[1]
The Law Society refused
to register 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.
[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
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, 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 papers upon the Minister of Justice (the
Minister) and the Attorney-General 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 section 22A(10) of the Medicines and
Related
Substances Control Act, 1965 (the Medicines
Act),
[4]
which contains a similar
prohibition.
[5]
[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 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 section 4(b) of the Drugs Act was not in issue, as the
appellant had neither raised the issue in his founding
affidavit nor 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 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.
The judgment of the High
Court
[6]
The High Court found that
the impact of section 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 section 36 of
the Constitution. In concluding 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 section 4(b) of the Drugs Act was not unconstitutional. It also
concluded that the same considerations applied
to section 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 SCA. To formalise the attack on section
4(b) of the Drugs Act and
section 22A(10) of the Medicines Act, the SCA allowed
the appellant to amend the Notice of Motion by inserting paragraph 4, which
reads:
“4(a) Declaring section 4(b) of the Drugs and Drug Trafficking Act, No 140
of 1992 (as amended) (“the Drugs Act”)
and section 22A(10) of the
Medicines and Related Substances Control Act, No 101 of 1965 (“the
Medicines Act”) to be inconsistent
with the Constitution of the Republic
of South Africa, Act 108 of 1996 (“the Constitution”) and
accordingly invalid.
ALTERNATIVELY, declaring section 4(b) of the Drugs Act and section 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.
(b) Suspending the aforesaid declarations of invalidity for a period of twelve
(12) months from the date of confirmation of this
order by the Constitutional
Court to enable Parliament to correct the 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 only directed 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 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 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, 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 on
Rastafari.
[15]
The A-G, who was the
only respondent who appeared and filed written argument 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,
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.
Issues on appeal
[10]
In this Court, the
appellant contended that section 4(b) of the Drugs Act and section 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
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 section 36 of the Constitution.
He contended, amongst other
things, that there would be grave difficulties in policing such an
exemption.
[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, 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 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 sects or
branches of the religion; whether there are structures of
leadership or
authority within the religion; the number of adherents or practising Rastafari
in South Africa and the extent of the
geographical spread of the religion in
South Africa. Such information is important to a determination of the
constitutional question
presented in this
matter.
[13]
The Court needs to know
precisely how cannabis is used in the practice and exercise of the Rastafari
religion: whether communal religious
ceremonies or services are held and, if so,
whether they are held at places designated specifically for such purposes;
whether such
ceremonies are presided over, or led, or controlled by a particular
person or persons; what precisely the extent of the use is that
is required by
the practice or exercise of the religion; whether its use in the exercise of the
religion is limited to liturgical
or ceremonial use or whether it extends to
private use and, if the latter, whether any restriction is placed on such
private use;
whether certain uses are obligatory in terms of the doctrines of
the religion, or merely desirable or completely optional; and what
reasonably
practical methods exist, compatible with the exercise of the religion contended
for, for exempting practitioners of the
Rastafari religion from criminal
prohibitions against the possession or use of
cannabis.
[14]
In addition, it is
necessary to have facts to substantiate the bare allegation by the A-G that
there would be grave practical difficulties
in policing a religious exemption.
This information goes to the scope of the invasion of the appellant’s
constitutional rights
and the scope of the justification necessary for such
invasion to pass constitutional muster.
[15]
The evidence put forward by
the appellant as to the nature of the Rastafari religion and the use of
cannabis, primarily in the affidavit
of Professor Yawney, is neither
comprehensive nor specific enough as to the South African context to resolve the
issues confronting
us. For example, Professor Yawney alludes to the fact that
while cannabis has a central role in religious ceremonies conducted by
Rastafari, it is also used extensively outside of these ceremonies. She refers
to cannabis as being used in bathing, eating, drinking
and for medicinal
purposes.
[16]
She makes the point
that all of these uses are seen as part of the religious practices of Rastafari
in that cannabis as a plant
is regarded as sacred. However, the various uses by
Rastafari of cannabis have not been explicitly set out in the papers before
us
nor is it clear how much cannabis is used by Rastafari or how it is obtained by
them.
[17]
[16]
In his founding affidavit,
the appellant states that cannabis is used by Rastafari “
inter
alia
for spiritual, medicinal and culinary purposes”, and that he
himself uses cannabis not only ceremonially but also “by
either burning it
as incense or smoking, drinking or eating it in private at home as part of my
religious observance.” This
further illustrates the diverse uses of
cannabis by Rastafari and the need for more detailed information on whether all
Rastafari
use cannabis in a similar manner to the
appellant.
[17]
There is also no evidence
as to the existence, if any, of any internal restriction on, or supervision of,
the use of cannabis by adherents
to the religion, so as to address the concern
of the government on the abuse of drugs. All this information is relevant to
the determination
of whether reasonable accommodation for the use of cannabis
for religious purposes is possible. The bare allegation by the A-G that
there
would be grave difficulties in policing an exemption is also not sufficient.
Without facts in support of that allegation it
amounts to speculation. It is
necessary to produce evidence in support of this allegation, particularly in
light of the fact that
both the Drugs Act and the Medicines Act allow an
exemption for the use and possession of cannabis for research and scientific
purposes.
[18]
[18]
Lack of this relevant
evidence in the record is due to the course which the litigation took in this
matter. It will be recalled that
the initial challenge was directed at the
refusal of the Law Society to register the appellant’s contract of
community service.
There was no frontal challenge to section 4(b) of the Drugs
Act and section 22A(10) of the Medicines Act. The constitutionality
of the
impugned provisions was raised for the first time in the appellant’s heads
of argument in the High Court. The Minister
and the A-G took the view that the
constitutionality of the impugned provisions was not in issue and that therefore
it was not necessary
for them to deal in any detail with this issue in their
respective affidavits. Although the A-G and the Minister sought to justify
the
constitutionality of section 4(b), this must be viewed against their expressed
attitude that the constitutionality of the provision
was not in issue in the
High Court. Despite the position taken by the Minister and the A-G, the
appellant neither supplemented his
papers so as to raise the constitutionality
of the impugned provisions and provide a basis for such a challenge nor sought
to amend
the Notice of Motion to include an order declaring the impugned
provisions unconstitutional. The Minister saw no need to deal with
the
justification of section 4(b)of the Drugs Act. This resulted in the information
relevant to the determination of the constitutional
issue presented in this
appeal not being placed before the High Court.
[19]
We must now decide whether
further evidence should be received.
Should
further evidence be received?
[20]
Rule 29 of the
Constitutional Court Rules makes certain sections of the Supreme Court Act,
1959
[19]
applicable to the
proceedings of this Court. These sections include section 22, which deals with
powers of courts on hearing of
appeals and
provides:
“The appellate division or a provincial division, or a local division
having appeal jurisdiction, shall have power—
(a) on the hearing of an appeal to receive further evidence, either orally or by
deposition before a person appointed by such division,
or to remit the case to
the court of first instance, or the court whose judgment is the subject of the
appeal, for further hearing,
with such instructions as regards the taking of
further evidence or otherwise as to the division concerned seems necessary;
and
(b) to confirm, amend or set aside the judgment or order which is the subject of
the appeal and to give any judgment or make any
order which the circumstances
may require.”
[21]
Although section 22 confers
wide discretion on the appeal court to receive further evidence on appeal, it is
clear that courts do
not readily grant leave to do so. They will, as a general
matter, grant such leave where special grounds exist, there will be no
prejudice
to the other side and further evidence is necessary in order to do justice
between the parties.
[20]
They have
understandably refrained from attempting to frame an exhaustive definition of
the special grounds on which a court ought
to accede to an application for leave
to lead further evidence. They have emphasised that the fact that the matter at
issue is of
great importance to a litigant does not in itself constitute a
special ground.
[21]
What has
generally been accepted as constituting a special ground is the fact that the
evidence sought to be led was either not
in possession of the party at the time
of the trial or by proper diligence could not have been
obtained.
[22]
The evidence sought
to be led must be credible, material and
conclusive.
[23]
[22]
Parties who challenge the
constitutionality of a provision in a statute must raise the constitutionality
of the provisions sought
to be challenged at the time they institute legal
proceedings. In addition, a party must place before the court information
relevant
to the determination of the constitutionality of the impugned
provisions. Similarly, a party seeking to justify a limitation of
a
constitutional right must place before the court information relevant to the
issue of justification. I would emphasise that all
this information must be
placed before the court of first
instance.
[24]
The placing of the
relevant information is necessary to warn the other party of the case it will
have to meet, so as allow it the
opportunity to present factual material and
legal argument to meet that case. It is not sufficient for a party to raise the
constitutionality
of a statute only in the heads of argument, without laying a
proper foundation for such a challenge in the papers or the pleadings.
The
other party must be left in no doubt as to the nature of the case it has to meet
and the relief that is sought. Nor can parties
hope to supplement and make
their case on appeal.
[23]
That said, the
considerations applicable to allowing further evidence on appeal in
constitutional matters are not necessarily the
same as the considerations
applicable in other matters. It is undesirable to attempt to lay down precise
rules when leave to adduce
further evidence on appeal will be granted by this
Court. For the purposes of the present case, the relevant factors, which I
consider
more fully below, are: the validity of Acts of Parliament that serve an
important public interest is in issue; the constitutional
right asserted is of
fundamental importance and it goes beyond the narrow interest of the appellant;
the validity of the impugned
provisions has been fully canvassed by a full bench
of the High Court and that of five judges of the SCA; the course which the
litigation
took in the High Court and the SCA; and the appellant is a person of
limited resources. These factors, moreover, must be viewed
against the power of
this Court to grant direct
access.
[25]
[24]
At issue in this appeal is
the validity of statutes that serve an important public interest, namely, the
prevention of drug trafficking
and drug abuse. A declaration of invalidity will
have far-reaching consequences for the administration of justice. We were
informed
by Mr Slabbert, who appeared on behalf of the A-G, that there are a
number of cases in which the Rastafari religion has been raised
as a defence to
the charge of possession of cannabis, and that these cases are awaiting the
outcome of this case.
[25]
The constitutional right to
practise one’s religion asserted by the appellant here is of fundamental
importance in an open and
democratic society. It is one of the hallmarks of a
free society. In
Christian Education South Africa v Minister of
Education
[26]
we said
so:
“There can be no doubt that the right to freedom of religion, belief and
opinion in the open and democratic society contemplated
by the Constitution is
important. The right to believe or not to believe, and to act or not to act
according to his or her beliefs
or non-beliefs, is one of the key ingredients of
any person’s dignity. Yet freedom of religion goes beyond protecting the
inviolability of the individual conscience. For many believers, their
relationship with God or creation is central to all their
activities. It
concerns their capacity to relate in an intensely meaningful fashion to the
sense of themselves, their community
and their universe. For millions in all
walks of life, religion provides support and nurture and a framework for
individual and
social stability and growth. Religious belief has the capacity
to awake concepts of self-worth and human dignity which form the
cornerstone of
human rights. It affects the believer’s view of society and founds the
distinction between right and wrong.
It expresses itself in the affirmation and
continuity of powerful traditions that frequently have an ancient character
transcending
historical epochs and national boundaries.” (Footnotes
omitted)
[26]
In addition, the appellant
belongs to a minority group. The constitutional right asserted by the appellant
goes beyond his own interest
— it affects the Rastafari community. The
Rastafari community is not a powerful one. It is a vulnerable group. It
deserves
the protection of the law precisely because it is a vulnerable
minority. The very fact that Rastafari use cannabis exposes them
to social
stigmatisation. They are perceived as associated with drug abuse and their
community is perceived as providing a haven
for drug abusers and gangsters.
During argument it was submitted on behalf of the A-G that if a religious
exemption in favour of
the Rastafari were to be allowed this would lead to an
influx of gangsters and other drug abusers into their community. The assumption
which this submission makes demonstrates the vulnerability of this group. Our
Constitution recognises that minority groups may hold
their own religious views
and enjoins us to tolerate and protect such views. However, the right to
freedom of religion is not absolute.
While members of a religious community may
not determine for themselves which laws they will obey and which they will not,
the state
should, where it is reasonably possible, seek to avoid putting the
believers to a choice between their faith and respect for the
law.
[27]
[27]
The initial challenge in
this case was directed at the constitutionality of the decision of the Law
Society and not at the constitutionality
of the impugned provisions. In view of
this, the Minister and the A-G did not seek to justify the constitutionality of
the impugned
provisions in any detail. As a result, no detailed information was
placed before the High Court that was necessary to determine
the scope of the
invasion of the appellant’s constitutional right and the justification or
otherwise of the limitation, if
any. The course taken by the litigation, though
undesirable, is in a sense understandable. Constitutional litigation is a
relatively
new area in our law.
[28]
Notwithstanding the paucity
of information, the constitutionality of the impugned provisions has been
traversed fully in the judgments
of the full bench of the High Court and five
judges of the SCA. Notably though, both judgments were delivered prior to our
judgment
in
Christian
Education
[28]
where we
considered the right to freedom of religion and the justification for the
limitation of such a right. In the circumstances,
no purpose would be served by
requiring the appellant to commence proceedings afresh in the High Court.
Moreover, the appellant
is clearly not a person of means and the dismissal of
the appeal on procedural grounds would more likely than not inhibit him from
instituting proceedings afresh in order to seek vindication of his
constitutional rights. In addition, the appellant needs to know
his fate. The
decision in this appeal will have an impact on his future
career.
[29]
Finally, there can be no
prejudice to the parties if both are granted leave to adduce further evidence
necessary in order for this
Court properly to decide the issues presented in
this appeal. We were informed by Mr Slabbert from the bar that, to his
knowledge,
the question of granting a religious exemption for the religious
possession and use of cannabis has not been investigated. Moreover,
further
evidence is required on a narrow issue, namely, the scope of the alleged
invasion of the appellant’s constitutional
rights and the practical
difficulties, if any, that would arise in policing a religious exemption. To
prepare and furnish such further
evidence should not take long and it is
unlikely that a conflict of a nature that cannot be resolved on the affidavits
will arise
in such evidence.
[30]
For all these reasons, and
having regard to our power to grant direct access, there is good reason in the
circumstances of the present
case to have evidence placed before the Court that
is necessary to resolve the constitutional issues presented. I am accordingly
satisfied that the interests of justice demand that the parties be allowed the
opportunity to submit further evidence, which must
be done by way of
affidavit.
[31]
In view of the need for
further evidence, it is apparent that this matter is unlikely to be finalised
soon. One of the issues that
has arisen in this appeal is whether the
proceedings before the SCA were a nullity because the SCA did not sit as a bench
of eleven
judges, as the provisions of section 12(1)(b) of the Supreme Court
Act, 1959
[29]
require. If the SCA
did not sit in accordance with the Supreme Court Act it would clearly have
infringed the provisions of section
168(2) of the Constitution. If the
proceedings before the SCA were a nullity, there would be no appeal before this
Court. It is
necessary, therefore, to decide this
issue.
Were the proceedings in the SCA a
nullity?
[32]
In his written argument,
counsel for the appellant very properly drew our attention to the provisions of
section 12(1)(b) of the Supreme
Court Act which provides that when the SCA
considers a question of the validity of an Act of Parliament, it shall sit as a
quorum
of eleven judges. The issue is whether proceedings before the SCA were a
nullity because that Court did not sit as a bench of eleven
judges when
determining the constitutional question presented in this appeal. This issue
was not drawn to the attention of the SCA.
[33]
Section 168(2) of the
Constitution provides that the quorum of the SCA shall be determined by an Act
of Parliament. The question
for determination is whether it was incumbent on
the SCA to sit as a bench of eleven judges when considering the
constitutionality
of the impugned provisions as determined by section 12(1)(b)
of the Supreme Court Act. If it was, failure to do so ran foul of the
provisions of section 168(2) of the Constitution and the ensuing proceedings
would have been a nullity.
[34]
Section 12(1)(b) has its
genesis in the Appellate Division Quorum Act,
1955,
[30]
which increased the quorum
of judges from five to eleven when the validity of an Act of Parliament was in
issue.
[31]
This was followed by an
amendment of the South Africa Act,
1909
[32]
to include a provision
which prevented the Supreme Court from enquiring into or pronouncing upon the
validity of any law passed by
Parliament other than a law which repealed or
altered sections 137 or 152 of the South Africa
Act.
[33]
Section 59 of the
subsequent Constitution, the Republic of South Africa Constitution Act,
1961
[34]
contained a substantially
similar provision. Section 34(2) of the 1983
Constitution
[35]
gave the Supreme
Court the power to enquire into and pronounce upon the question as to whether
the provisions of the Constitution
were complied with in the passing of an Act
of Parliament. However, section 34(3) expressly precluded the Supreme Court
from enquiring
into and pronouncing upon the validity of an Act of Parliament.
Thus, on the eve of the present constitutional democracy, the SCA
had
constitutional jurisdiction, but this was
limited.
[35]
Section 101(5) of the
interim Constitution provided that “[t]he Appellate Division shall have no
jurisdiction to adjudicate
any matter within the jurisdiction of the
Constitutional Court.” In terms of section 98(2), the Constitutional
Court was made
“the court of final instance over all matters relating to
the interpretation, protection and enforcement of the provisions
of [the]
Constitution”. In terms of section 98(2)(c), the jurisdiction of the
Constitutional Court included “any inquiry
into the constitutionality of
any law, including an Act of Parliament, irrespective of whether such law was
passed or made before
or after the commencement of [the] Constitution”.
The powers of this Court under section 98(2)(c) embraced the entire jurisdiction
relating to the validity of Acts of Parliament previously enjoyed by the SCA.
The effect of section 101(5), therefore, read with
section 98(2)(c) of the
interim Constitution, was to deprive the SCA of all constitutional jurisdiction
including the jurisdiction
to determine the validity of Acts of Parliament
passed before the interim Constitution came into force. The interim
Constitution
therefore not only denied the SCA constitutional jurisdiction under
that Constitution, but deprived it of a jurisdiction it had previously
enjoyed
in respect of pre-1994 statutes.
[36]
Section 12(1)(b) rested on
the premise that the SCA had jurisdiction to enquire into the validity of an Act
of Parliament and it regulated
the exercise of that jurisdiction by providing
for a special quorum. That was its only purpose. The premise on which it was
based
fell away when the interim Constitution came into effect as that
Constitution deprived the SCA of its substantive jurisdiction to
enquire into
the validity of any Act of Parliament. As section 12(1)(b) was a provision
aimed at regulating jurisdiction that was
taken away by the interim
Constitution, it cannot be said to be a provision which was consistent with the
interim Constitution.
It was manifestly inconsistent with section 101(5).
[37]
Section 4(1) of the interim
Constitution, the supremacy clause, provided that “any law or act
inconsistent with its provisions
shall, unless otherwise provided expressly or
by necessary implication in this Constitution, be of no force and effect to the
extent
of the inconsistency”. The effect of section 4(1) is that from the
moment the interim Constitution came into operation any
law which was
inconsistent with the provisions of the interim Constitution ceased to have
legal effect.
[36]
Section 12(1)(b)
having as its sole purpose the regulation of a jurisdiction inconsistent with
the provisions of the interim Constitution
was inconsistent with the interim
Constitution and became invalid when the provisions of that Constitution came
into
operation.
[37]
[38]
Once section 12(1)(b)
became invalid because of its inconsistency with the interim Constitution, it
could not be validated simply
by the fact that under the Constitution the SCA
now has constitutional jurisdiction. Section 168(2) of the Constitution which
stipulates
that the quorum of the SCA shall be determined by an Act of
Parliament must therefore, in the absence of the proviso in section 12(1)(b),
refer, at present, to section 12(1) of the Supreme Court Act which determines
that the ordinary quorum of that Court shall be five
judges. This result is
consistent with the new constitutional order. Section 12(1)(b) of the Supreme
Court Act was enacted at a
time when the SCA was the highest court of appeal.
That is no longer the case. Its decisions on the constitutionality of an Act
of
Parliament or conduct of the President have no force or effect unless confirmed
by this Court. Its powers in this regard are
therefore no different from those
conferred upon the High Court.
[39]
I conclude therefore that
section 12(1)(b) was inconsistent with section 101(5), read with section
98(2)(c), of the interim Constitution
and therefore invalid to the extent of
such inconsistency. It follows that it was not necessary for the SCA to sit as
a bench of
eleven judges when considering the constitutionality of the impugned
provisions of the Drugs Act and the Medicines
Act.
[40]
The Minister was not
represented in this Court, but abided its decision. As the validity of section
12(1)(b) arose in the course
of the hearing and the Minister was not aware that
this Court would consider the validity of the section, he was invited to make
representations on the validity of the section. The Minister declined to do so.
Order
[41]
In the result, I make the
following order:
1. Section 12(1)(b) of the Supreme Court Act 59 of 1959 is inconsistent with the
Constitution of the Republic of South Africa 200
of 1993 and is declared invalid
with effect from 27 April 1994.
2. The appellant is granted leave to deliver, on or before 24 January 2001,
evidence on affidavit setting out:
1. (a) how, where, when and by whom cannabis is used within the Rastafari
religion in South Africa;
(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 religion;
and
(e) any other facts relating to the matters set forth in paragraphs 12 - 17 of
the judgment.
3. The respondents are granted leave to deliver, on or before 14 February 2001,
evidence on affidavit setting out:
(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
(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
1965, from the medical and scientific exemptions currently to be found
in
section 4(b) of the Drugs Act and section 22A(10) of the Medicines Act, if at
all.
4. The appellant shall file his response, if any, to the evidence submitted by
the respondents, on or before 21 February 2001.
5. The further disposal of this matter will take place in accordance with
directions to be issued by the
President.
Chaskalson P, Langa DP, Ackermann J,
Goldstone J, Kriegler J, Mokgoro J, O’Regan J, Sachs J, Yacoob J and
Madlanga AJ concur
in the judgment of Ngcobo J.
For the appellant: JL Abel instructed by the Dison Ndlovu Attorneys
For the fifth respondent: J Slabbert instructed by the Director of Public
Prosecutions, Cape of Good Hope
[1]
Act 53 of 1979.
[2]
Act 140 of 1992.
[3]
Section 4 reads as
follows:
“No person shall use or have in his possession—
. . .
(b) any dangerous dependence-producing substance or any undesirable
dependence-producing substance,
unless—
(i) he is a patient who
has acquired or bought any such substance—
(aa) from a medical practitioner, dentist or practitioner acting in his
professional capacity and in accordance with the requirements
of the Medicines
Act or any regulation made thereunder; or
(bb) from a pharmacist in terms of an oral instruction or a prescription in
writing of such medical practitioner, dentist or practitioner,
and uses that substance for medicinal purposes under the care or treatment of
the said medical practitioner, dentist or practitioner;
(ii) he has acquired or bought any such substance for medicinal
purposes—
(aa) from a medical practitioner, veterinarian, dentist or practitioner
acting in his professional capacity and in accordance with
the requirements of
the Medicines Act or any regulation made thereunder;
(bb) from a pharmacist in terms of an oral instruction or a prescription in
writing of such medical practitioner, veterinarian, dentist
or practitioner;
or
(cc) from a veterinary assistant or veterinary nurse in terms of a
prescription in writing of such veterinarian,
with the intent to administer that substance to a patient or animal under the
care or treatment of the said medical practitioner,
veterinarian, dentist or
practitioner;
(iii) he is the Director-General: Welfare who has acquired or bought any such
substance in accordance with the requirements of the
Medicines Act or any
regulation made thereunder;
(iv) he, she or it is a patient, medical practitioner, veterinarian, dentist,
practitioner, nurse, midwife, nursing assistant, pharmacist,
veterinary
assistant, veterinary nurse, manufacturer of, or wholesale dealer in,
pharmaceutical products, importer or exporter, or
any other person contemplated
in the Medicines Act or any regulation made thereunder, who or which has
acquired, bought, imported,
cultivated, collected or manufactured, or uses or is
in possession of, or intends to administer, supply, sell, transmit or export
any
such substance in accordance with the requirements or conditions of the said Act
or regulation, or any permit issued to him,
her or it under the said Act or
regulation;
(v) he is an employee of a pharmacist, manufacturer of, or wholesale dealer
in, pharmaceutical products, importer or exporter who
has acquired, bought,
imported, cultivated, collected or manufactured, or uses or is in possession of,
or intends to supply, sell,
transmit or export any such substance in the course
of his employment and in accordance with the requirements or conditions of the
Medicines Act or any regulation made thereunder, or any permit issued to such
pharmacist, manufacturer of, or wholesale dealer in,
pharmaceutical products,
importer or exporter under the said Act or regulation; or
(vi) he has otherwise come into possession of any such substance in a lawful
manner.”
Cannabis is included in the list of “undesirable dependence-producing
substances” in part III of schedule 2.
[4]
Act 101 of 1965.
[5]
Section 22A(10) reads as
follows:
“No person shall—
(a) acquire, use, have in his possession, manufacture or import any Schedule 8
substance except for analytical or research purposes
and unless a permit for
such acquisition, use, possession, manufacture or importation has been issued to
him by the Director-General
on the recommendation of the council; or
(b) acquire, import, collect, cultivate, keep or export any plant or any portion
thereof from which any such substance can be extracted,
derived, produced or
manufactured, unless a permit to acquire, import, collect, cultivate, keep or
export such plant or any portion
thereof, has been issued to him by the
Director-General on the recommendation of the
council.”
Cannabis is one of the substances listed in schedule 8.
[6]
The judgment of the High Court is
reported as
Prince v President of the Law Society, Cape of Good Hope and
Others
1998 (8) BCLR 976
(C). The Minister and the A-G were each
represented in the High Court by counsel.
[7]
Id at 989A-B.
[8]
At 993C. In relation to the
additional constitutional attack on section 4(b) of the Drugs Act, based on the
prohibition against
discrimination and the right to choose a profession, the
Court assumed that section 4(b) limited these rights, but found that the
limitation was justifiable in terms of section 36 of the Constitution, on the
same basis as the limitation on the right to freedom
of religion.
[9]
The judgment of the SCA is
reported as
Prince v President, Cape Law Society and Others
2000 (3) SA
845 (SCA); 2000 (7) BCLR 823 (SCA).
[10]
Id at para 13.
[11]
The SCA also dealt with the
other challenges to the decision of the Law Society and dismissed them.
[12]
Rule 30 provides
that:
“(1) Any party to any proceedings before the Court and an
amicus
curiae
properly admitted by the Court in any proceedings shall be entitled,
in documents lodged with the registrar in terms of these rules,
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: Provided that such
facts—
(a) are common cause or
otherwise incontrovertible; or
(b) are of an official, scientific, technical or statistical nature capable
of easy verification.
(2) All other parties shall be entitled, within the time allowed by these rules
for responding to such document, to admit, deny,
controvert or elaborate upon
such facts to the extent necessary and appropriate for a proper decision by the
Court.”
[13]
Three reports were submitted:
Joy
et al
“Marijuana and Medicine: Assessing the Science
Base” (National Academy Press, Washington 1999) a report by the Institute
of Medicine in the United States, at the request of The White House Office of
National Drug Control Policy, “to assess the
potential health benefits and
risks of marijuana and its constituent cannabinoids”; Le Dain
et al
“Cannabis: The Report of the Canadian Government Commission of Inquiry
into the Non-Medical Use of Drugs” (Information
Canada, Ottawa 1972)
chapters 1, 2 and 6; and Hall
et al
“
WHO
Project on Health
Implications of Cannabis Use: A Comparative Appraisal of the Health and
Psychological Consequences of Alcohol,
Cannabis, Nicotine and Opiate Use”
(1995).
[14]
“Deglamorising
cannabis” 346
The Lancet
1241 (November 1995) and “The War on
Drugs: Prohibition Isn’t Working: Some Legalisation Will Help” 311
British Medical Journal
(December 1995).
[15]
The A-G did not object to the
admission of Professor Yawney’s affidavit.
[16]
In an unpublished paper written
by Pauline Herbst entitled “Identity, Protest and Healing: The Multiple
Uses of Marijuana in
Rastafari” which was included as an annexure to the
application for leave to appeal, the point is also made that cannabis is
not
only smoked communally but may also be taken by individuals in a tea, as a tonic
or curative, or in a resin, as a topical application
to treat infections.
[17]
There is a suggestion by Herbst
that cannabis is considered more sacred if cultivated personally.
[18]
Section 4(b)(i) - (vi) of the
Drugs Act, quoted above in n 3, allows various exemptions from the general
prohibition on possession
and use of cannabis, including exemptions for patients
to acquire cannabis from medical practitioners, pharmacists, veterinarians
or
dentists. In addition, subsection (iv) makes provision for the issuing of
permits for the cultivation, importation and sale of
cannabis.
Section 22A(10) of the Medicines Act, quoted in full above at n 5, also makes
provision for the issuing of permits for the possession,
cultivation,
manufacture and import of cannabis for “analytical or research
purposes”.
[19]
Act 59 of 1959.
[20]
Shein v Excess Insurance Co
Ltd
1912 AD 418
at 429;
Staatspresident en ’n Ander v Lefuo
[1990] ZASCA 6
;
1990 (2) SA 679
(AD) at 691C-J.
[21]
Shein v Excess Insurance
above n 20 at 429.
[22]
Deintje v Gratus &
Gratus
1929 AD 1
at 6-7.
[23]
Colman v Dunbar
1933 AD
141
at 162.
[24]
National Coalition for Gay
and Lesbian Equality and Others v Minister of Home Affairs and Others
[1999] ZACC 17
;
2000
(2) SA 1
(CC);
2000 (1) BCLR 39
(CC) at para 7.
[25]
See rule 17 of the
Constitutional Court Rules, read with section 167(6)(a) of the Constitution and
section 16(2)(a)
of the
Constitutional Court Complementary Act 13 of 1995
.
[26]
2000 (10) BCLR 1051
(CC) at
para 36.
[27]
Christian Education v
Minister of Education
above n 26 at para 35.
[28]
Above n 26.
[29]
Section 12(1)(b)
reads as
follows:
“The quorum of the appellate division shall . . . be five judges in all
criminal and civil matters: Provided that —
. . .
(b) on the hearing of an appeal, whether criminal or civil, in which the
validity of an Act of Parliament (which includes any instrument
which purports
to be and has been assented to by the State President as such an Act) is in
question, eleven judges of the appellate
division shall form a
quorum”.
[30]
Act 27 of 1955.
[31]
This statute was part of the
process whereby the former government deprived coloured people of their right to
vote, which was until
then entrenched in the Constitution. See Dugard
Human
Rights and the South African Legal Order
(Princeton University Press,
Princeton 1978) at 31; Loveland
By Due Process of Law? Racial Discrimination
and the Right to Vote in South Africa 1855 - 1960
(Hart Publishing, Oxford
1999) at 340.
[32]
The South Africa Act Amendment
Act 9 of 1956.
[33]
Section 2 of the Amendment Act.
Sections 137 and 152 of the South Africa Act entrenched English and Dutch (which
included Afrikaans)
as the official languages and the procedure to be followed
in amending the Constitution, respectively. These provisions were referred
to
as the entrenched provisions.
[34]
Act 32 of 1961.
[35]
The Republic of South Africa
Constitution Act 110 of 1983.
[36]
Ferreira v Levin NO and
Others; Vryenhoek and Others v Powell NO and Others
1996 (1) SA 984
(CC);
1996 (1) BCLR 1
(CC) at paras 26 and 28.
[37]
Id at para 27.