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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 : 17 May 2001
Decided on : 25 January 2002
JUDGMENT
NGCOBO J:
Introduction
[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 section 2A(a)(ii)
of the Attorneys
Act.[2] In an application to register
his contract of community service with the Law Society of the Cape of Good Hope
(the Law Society),
the second respondent, as required by section 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.
[2] The Law Society
declined to register his contract of community service. It took the view that a
person who, while having two
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 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,
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 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.
[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
[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,1[0] and
not to be subjected to unfair
discrimination.1[1] He sought an
order reviewing and setting aside the decision of the Law 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
this Court, the appellant had broadened his constitutional
challenge to include a challenge to section 4(b) of the Drugs and Drug
Trafficking Act 140 of 1992 (the Drugs
Act)1[2] and section 22A(10) of the
Medicines and Related Substances Control Act 101 of 1965 (the Medicines
Act).1[3] It is this challenge that
led to the intervention of the Minister of Justice, the Minister of Health and
the Attorney-General.
[7] This matter first came before this Court in
November 2000.1[4] 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
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
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;
(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 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:
(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 s 4(b) of the Drugs Act and s 22A(10) of the Medicines Act, if at all.”1[5]
[8] Pursuant
to that order the parties have submitted a considerable body of additional
factual and opinion material.
Preliminary issues
[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.
(a) The Rule 30 application
[10] Rule
301[6] 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 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.1[7] 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. 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 and
tobacco.1[8] Some of its contents
are not free from controversy if viewed against the evidence on the effect of
cannabis filed on behalf of the
Attorney-General. Apart from this, the 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) 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.1[9] The affidavit of
Professor Yawney 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 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 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 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 the affidavits sought to be introduced by the
Attorney-General should not be
received.2[0]
[14] With that
prelude, I now turn to the merits of the appeal.
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 sections 15 and 31
of our Constitution. The Rastafari religion has
been in existence for more than
seventy years. Although it is said to have its origin in Jamaica, its origin is
also linked to Ethiopia.
It originated as a black consciousness movement
seeking to overthrow colonialism and white oppression. Over the years, it has
spread
to other countries, including our own. It is estimated that there are
approximately twelve thousand Rastafari in this country.
[16] While
Rastafari generally do not belong to formal organisations, they belong to
several duly constituted groups or communities.
In addition, they may belong to
one of the Houses of Rastafari.2[1]
Recently, the Rastafari National Council has been formed as an umbrella body to
co-ordinate activities, and to look after the interests
of the Rastafari,
including matters of conduct and discipline. Their places of worship are
similarly informal and they are usually
designated sacred areas or Tabernacles
where communities would come together for the purposes of worship. Church
gatherings are
presided over by priests, assistant priests or elderlies.
According to the evidence, there are about seven priests in this
country.
[17] Rastafari have a moral code which the adherents are
required to follow such as the Nazarene Code. The religion promotes universal
values such as peace, love, truth, equality, justice and freedom. It
acknowledges the Bible as an inspirational and sacred source.
Reasoning and
meditation are essential elements of the religion. Meditation is an individual
contemplative practice while reasoning
is a collective activity that serves as a
form of communion. One of the essential elements of these activities is the use
of cannabis
which is used at religious gatherings and in the privacy of the
follower’s home.
Cannabis and the Rastafari
religion
[18] There is no genuine dispute that the use of cannabis is
central to the Rastafari
religion.2[2] According to
Professor Yawney, to the Rastafari, cannabis or “the herb”, as the
Rastafari call it, is a sacred God-given
plant to be used for the healing of the
nation. Rastafari describe their religious experience as “knowing
God”, “gaining
divine wisdom” and “seeing the
truth”. In the pursuit of their religious experience they seek to gain
access to
the inspiration provided by Jah Rastafari, the Living God. The use of
cannabis is critical to opening one’s mind to inspiration
because God
reveals himself through this medium. It is believed that there is a duty
incumbent upon human beings to praise the Creator
and that through the use of
cannabis one is best able to fulfill this obligation. Thus cannabis is also
called incense. The use
of cannabis is a sacrament known as Communion which
accompanies reasoning.
[19] Cannabis is consumed individually by smoking
it in the form of an individual cigarette-like “spliff” or by using
a water-pipe known as the “chalice”. The chalice — a symbol
of the Rastafari religion — is passed around
to fellow members. The
reason for smoking cannabis through a chalice, “is based on the Rastafari
belief that the body is a
temple and is cleansed from within by the smoke of the
cannabis and is also seen as a peace offering to appease the love of God on
sinful people”. The appellant likened the smoking of cannabis through the
chalice to the performance of the Holy Communion.
Women and children do not
take part in the smoking of the chalice. Cannabis is also burnt as incense.
When burnt as incense, cannabis
is thrown onto the altar fire or burnt in an
incense holder. This practice, he said, was similar to the burning of incense
in other
religions. Other uses include eating it as part of food, drinking it
as a tonic, or bathing in it. Although it is also used for
medicinal and
culinary purposes, these uses are no less sacred.
[20] There is a highly
elaborate protocol surrounding the use of cannabis. The use of the herb as a
form of prayer is a most sacred
act. There is strict discipline surrounding the
use of the herb as it is used to communicate with The Creator. The use of
cannabis
by the followers of the religion “is to create unity and to
assist them in re-establishing their eternal relationship with
their
Creator”. It is not to create an opportunity for casual use of cannabis.
Cannabis is used at religious gatherings,
ceremonies or in the privacy of
one’s home where it will not offend others. Rastafari consider themselves
to be purist and
the use of other intoxicants such as liquor, tobacco or street
drugs is prohibited.
[21] It is common cause that the appellant is an
adherent of the Rastafari religion. After he had adopted the vow of Nazarene as
a symbol of conversion, he started wearing his hair in dreadlocks and observing
the dietary commands of the religion. He performs
all the rituals prescribed by
the religion in accordance with the tenets of his religion and observes the
religious ceremonies, including
gatherings such as Nyahbinghi, which is similar
to a church service.2[3] He
partakes in the use of cannabis at these ceremonies. He also uses cannabis by
either burning it as an incense or smoking, drinking,
or eating it in the
privacy of his home.
The relevant statutory
provisions
[22] Cannabis is listed in Part III of Schedule 2 to the
Drugs Act as an undesirable dependence-producing substance. Its use or
possession is prohibited by section
4(b).2[4] The stated purpose of the
Drugs Act is to prohibit the use or possession of dependence-producing
substances and dealing in such
substances. A distinction is made between
dangerous and undesirable substances. Cannabis falls within the category of
undesirable
dependence-producing substances. However, this statute recognises
that it may be necessary to use this drug in certain circumstances
such as for
medicinal purposes. Hence, possession for medicinal purposes is exempted under
section 4(b) but this exemption is subject
to the provisions of the Medicines
Act.
[23] Section 22A(10) of the Medicines Act read with Schedule 8 of
that Act, also prohibits the use or possession of cannabis except
for research
or analytical purposes. Its stated purpose is to regulate the registration of
medicines and substances. The Medicines
Act makes provision for the
registration and control of medicines and substances for the protection of the
general public. Before
any medicine is supplied to the public it must be
certified by experts and may only be sold by certain classes of persons. In
addition,
this statute provides mechanisms for the enforcement of its
provisions.2[5]
[24] The
substances listed in Schedule 8 of the Medicines Act are substantially the same
as those listed in Part III of Schedule
2 to the Drugs Act. Seen in this
context, the purpose of the prohibition contained in section 22A(10) of the
Medicines Act coincides
with that of the Drugs Act. Both prohibitions are aimed
at prohibiting the use of harmful dependence-producing drugs. Cannabis
is the
target of both statutes, primarily because it has the potential to cause harm in
the form of psychological dependence when
consumed regularly and in large
doses.
Medical evidence on the effects of
cannabis
[25] Medical evidence on record indicates that cannabis is a
hallucinogen. Although the medical experts who deposed to affidavits
on the
harmful effects of cannabis differed in their
emphasis,2[6] on their evidence it
is common cause that: the abuse of cannabis is considered harmful because of its
psychoactive component, tetrahydrocannabinol
(THC); the effects of cannabis are
cumulative and dose-related; prolonged heavy use or less frequent use of a more
potent preparation
is associated with different problems; acute effects are
experienced most quickly when it is smoked; present clinical experience
suggests
that cannabis does not produce physical dependence or abstinence syndrome; and
the excessive use of cannabis will result
in a hypermanic or other psychotic
state. However, “one joint of dagga, or even a few joints” will not
cause harm.
[26] The harmful effect of cannabis which the prohibition
seeks to prevent is the psychological dependence that it has the potential
to
produce.2[7] On the medical
evidence on record, there is no indication of the amount of cannabis that must
be consumed in order to produce such
harm. Nor is there any evidence to
indicate whether bathing in it or burning it as an incense poses the risk of
harm that the prohibition
seeks to prevent. The medical evidence focused on the
smoking of cannabis and its harmful effects.
The contentions of the
parties
[27] The appellant contended that the impugned provisions were
unconstitutional to the extent that they failed to provide an exemption
applicable to the use or possession of cannabis by Rastafari for bona fide
religious purposes. Reduced to its essence the appellant’s
contention is
that the prohibition is constitutionally bad because it does not accommodate the
religious use of cannabis. Put simply,
the appellant contends that the impugned
provisions are overbroad. The appellant’s challenge must be viewed
against the fact
that the two statutes exempt from prohibition uses of cannabis
that cannot be said to amount to an abuse of cannabis such as research
and
medicinal purposes. These uses of cannabis are exempted but are subjected to
strict control and regulation.
[28] While accepting that the prohibition
limits the appellant’s constitutional rights to freedom of religion and
those of
his fellow Rastafari, the Attorney-General and the Minister of Health
nevertheless contended that such prohibition is justifiable
in terms of section
36 of the Constitution. They submitted that the prohibition is essential to the
war on drugs and is required
by our international law
obligations.2[8] In addition, they
contended that a religious exemption allowing Rastafari to use cannabis for
religious purposes would be difficult
to administer. The evidence they
submitted, as well as their argument, focussed on the smoking of cannabis and
the practical difficulties
that would be encountered in administering any
religious exemption. However, they did not submit any evidence to demonstrate
the
harmful effects of the other uses of cannabis such as bathing in it or
burning it as an incense. This was so notwithstanding the
specific allegation
by the appellant and Professor Yawney that Rastafari use cannabis in different
ways including smoking it, burning
it as an incense, eating it, bathing in it
and drinking it.
The Judgments of the Courts Below
[29] The
High Court found that the prohibition limits the constitutional right of the
appellant to practice his religion, but nevertheless
concluded that such
limitation was justifiable under section
36.2[9] It held that an exemption
allowing Rastafari to use cannabis would be contrary to the obligations of this
country under the relevant
International
Conventions.3[0] In addition, it
found that such an exemption would place a burden on the police and the courts,
both of which are operating under
heavy pressure because of the general crime
situation, as it would involve an investigation by the police and the courts
into whether
the defence based on the Rastafari religion is
genuine.3[1] It accordingly
dismissed the constitutional
challenge.3[2]
[30] The
judgment of the SCA focused on “whether there should be an exemption for
the use of cannabis by Rastafarians for bona
fide religious
observance”.3[3] The SCA
found that, having regard to the harmful effects of cannabis, especially when
used in large doses, the general ban on the
use or possession of cannabis was
necessary to prevent the abuse of cannabis by the Rastafari followers and that
an effective ban
of the abuse of drugs is “a pressing social
purpose”.3[4] In addition, it
found that the exemption sought will be impossible to enforce because of the
difficulty attendant on attempting
to establish whether a person found in
possession of cannabis is a Rastafari follower. It concluded that “[t]he
alternative
prayer cannot be granted in its present form and the available
evidence does not enable us to fashion a suitable order with adequate
precision.”3[5] It
accordingly dismissed the constitutional
challenge.3[6]
The issues
for decision
[31] It is important to emphasise what this case is not
about but what it is about. This case is not concerned with a broad challenge
to the constitutionality of the prohibition on the use or possession of
cannabis. Although this was the form of the main prayer
contained in the
amendment to the notice of motion in the SCA, the statutory provisions in
question were never attacked on the basis
that they should be struck down in
their entirety.3[7] We are not
therefore called upon to decide whether the legislature’s general
prohibition on the use and possession of cannabis
is consistent with the
Constitution or not. Equally, we are not called upon to decide whether the use
and possession of cannabis
should be legalised. Finally, we are not called upon
to determine what exemption should be granted to the appellant or to fashion
any
exemption. What we are called upon to decide is whether the impugned provisions
are overbroad.
[32] The SCA construed the alternative prayer as an
invitation “to create an exemption through the application of s 36(1)(e)
of the Constitution”3[8] and
as “another way of claiming an exemption not provided for in the
legislation and which a court of law cannot
provide.”3[9] Relying upon a
passage in the decision of this Court in S v
Lawrence,4[0] the SCA observed
that “[i]t may well be that on this ground alone the prayer cannot be
granted”4[1] but found it
unnecessary to come to any firm decision on this issue. The Attorney-General
has also approached this appeal on the
footing that the appellant is asking this
Court to grant the appellant a religious exemption to use, in particular, to
smoke cannabis.
This, in my view, misconstrues the nature of the
appellant’s constitutional challenge.
[33] The appellant’s
alternative prayer is not in substance a claim for an exemption in literal terms
although this is the
form of the alternative prayer. It is a limited challenge
to the impugned provisions. The constitutional complaint is that the
impugned
provisions are overbroad in that the proscription is so wide that its unlimited
terms also encompass the use or possession
of cannabis by Rastafarians for bona
fide religious purposes. The appellant did not therefore come to Court for an
order that the
scope of the exceptions made by section 4(b) of the Drugs Act and
section 22A(10) of the Medicines Act be enlarged. Instead the
appellant
challenged the prohibitions contained in these provisions. This distinguishes
the present case from S v Lawrence; S v Negal; S v
Solberg,4[2] where the appellant
in the Negal appeal challenged, amongst other things, section 88 of the
Liquor Act 27 of 1989 which dealt with the scope of the exception to the
prohibition against selling any liquor from a grocery store instead of
challenging the provisions of section 40 of that Act which
restricted the goods
that may be sold on licenced premises.
[34] It was in this context that
Chaskalson P said the following:
“The fallacy in the appellant’s argument is that it treats s 88 as the obstacle to grocers selling beer and cider whereas in substance the section deals with the scope of the exception to the prohibition against selling any liquor from a grocery store. If the appellant wishes to challenge the constitutionality of prohibiting grocers from selling beer, cider or any other liquor the challenge should be directed against s 40 and not against the exception to the prohibition made by ss 87 and 88.
Instead of doing this, the appellant has approached the Court for an order that the scope of the exception made by ss 87 and 88 be enlarged. In effect what the appellant has asked this Court to do is amend the Liquor Act so as to make provision for a ‘grocer’s wine, beer and cider licence’ as an exception to the prohibition imposed by s 40 of the Act. A Court can strike down legislation that is unconstitutional and can sever or read down provisions of legislation that are inconsistent with the Constitution because they are overbroad. It may have to fashion orders to give effect to the rights protected by the Constitution, but what it cannot do is legislate.”4[3]
[35] In
this Court, as in the courts below, this case was approached on the footing that
the prohibition contained in the impugned
provisions served a legitimate
government interest. Indeed there was no suggestion either in the papers or in
argument that the
objective pursued by the prohibition was not laudable. The
constitutional complaint before us is that the prohibition is constitutionally
bad because it is overbroad. To put it differently, the complaint is that the
legitimate government purpose served by the prohibition
could be achieved by
less restrictive means. It is that complaint, and it alone, that we are called
upon to consider.
[36] The determination of this complaint calls for an
enquiry into whether an exemption for the Rastafari religious use of cannabis
could be granted, or whether the field of the prohibition could otherwise be
limited so as not to trench on the Rastafari religious
use of cannabis without
undermining the purpose of the prohibition. This is not to suggest that the
Court must now embark upon the
enquiry into whether an exemption should be
granted. Nor does such an enquiry require the Court to formulate such an
exemption.
The purpose of this enquiry is to test the validity of the impugned
provisions by determining whether Parliament could have achieved
its goal
without limiting the constitutional rights to the extent that it did. However,
before determining the central question
presented in this appeal, it is
necessary to determine first whether the prohibition limits the
appellant’s constitutional
right to freedom of religion.
The
right to freedom of religion
[37] The right to freedom of religion is
contained in section 15(1) of the Constitution which provides:
“Everyone has the right to freedom of conscience, religion, thought, belief and opinion”
and in section 31(1)(a) which
provides:
“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”.
[38] This Court has on two occasions
considered the contents of the right to freedom of
religion.4[4] On each occasion, it
has accepted that the right to freedom of religion at least comprehends: (a) the
right to entertain the religious
beliefs that one chooses to entertain; (b) the
right to announce one’s religious beliefs publicly and without fear of
reprisal;
and (c) the right to manifest such beliefs by worship and practice,
teaching and dissemination.4[5]
Implicit in the right to freedom of religion is the “absence of coercion
or restraint.” Thus “freedom of religion
may be impaired by
measures that force people to act or refrain from acting in a manner contrary to
their religious
beliefs.”4[6]
[39] Seen
in this context, sections 15(1) and 31(1)(a) complement one another. Section
31(1)(a) emphasises and protects the associational
nature of cultural, religious
and language rights. In the context of religion, it emphasises the protection
to be given to members
of communities united by religion to practice their
religion. It is not necessary to say anything more on the proper scope of
section
31(1)(a). For the moment, the question that must now be considered is
whether the prohibition contained in the impugned provisions
limits the
appellant’s constitutional right to freedom of religion, a question that
is considered next.
Does the prohibition limit the appellant’s
constitutional rights
[40] That Rastafari is a religion is not in
dispute. It is now widely acknowledged that Rastafari is a form of
religion.4[7] Nor is it in dispute
that the appellant is a genuine follower of that religion. Similarly, it is not
in dispute that the use of
cannabis is central to the Rastafari religion.
Although it is also used for culinary and medicinal purposes, these uses are no
less
sacred in the context of the religion. The strict discipline and protocol
that accompanies the use of cannabis at religious gatherings
and ceremonies
emphasise the importance of cannabis in the Rastafari religion. All this points
to the centrality of cannabis in
the practice of Rastafari
religion.
[41] In this Court, the Director-General for Health sought to
challenge the centrality of the use of cannabis in the Rastafari religion
because children and women are excluded from smoking cannabis and the
constitutions of the various
Houses4[8] of the Rastafari religion
do not provide that the smoking of cannabis is essential to the religion. He
also questioned the sincerity
of the appellant’s belief in the Rastafari
religion.
[42] In the absence of credible evidence to the contrary, the
allegations made by the appellant which have not been disputed must
be accepted.
Apart from this, as a general matter, the Court should not be concerned with
questions whether, as a matter of religious
doctrine, a particular practice is
central to the religion. Religion is a matter of faith and belief. The beliefs
that believers
hold sacred and thus central to their religious faith may strike
non-believers as bizarre, illogical or irrational. Human beings
may freely
believe in what they cannot prove. Yet, that their beliefs are bizarre,
illogical or irrational to others or are incapable
of scientific proof, does not
detract from the fact that these are religious beliefs for the purposes of
enjoying the protection
guaranteed by the right to freedom of religion. The
believers should not be put to the proof of their beliefs or faith. For this
reason, it is undesirable for courts to enter into the debate whether a
particular practice is central to a religion unless there
is a genuine dispute
as to the centrality of the practice.
[43] Here, there is no question
about the genuineness of the appellant’s religious belief. He has
demonstrated that he is a bona fide member of the Rastafari religion and has
established that the use of cannabis is central
to the practice of the Rastafari
religion. The affidavit of Professor Yawney, who has written extensively on the
Rastafari religion
and its practice, confirms that the use of cannabis is
central to this religion. These allegations are not denied and must therefore
be accepted.
[44] The prohibition contained in the impugned provisions
requires the followers of the Rastafari religion to refrain from using
cannabis.
But this is contrary to their belief. They are forced to choose between
following their religion or complying with the
law. The prohibition on the use
or possession of cannabis thus manifestly limits the rights of the Rastafari to
practice their religion.
What remains to be considered is whether this
limitation is justifiable in terms of section 36.
Is the limitation on
the appellant’s constitutional rights justifiable
[45] To pass
constitutional muster, the limitation on the constitutional rights must be
justifiable in terms of section 36(1) of
the
Constitution.4[9] The limitation
analysis requires an enquiry into whether the limitation is reasonable and
justifiable in an open and democratic
society based on human dignity, equality
and freedom. In that enquiry, the relevant considerations include the nature of
the right
and the scope of its limitation, the purpose, importance and the
effect of the limitation, and the availability of less restrictive
means to
achieve that purpose. None of these factors is individually decisive. Nor are
they exhaustive of the relevant factors
to be
considered.5[0] These factors
together with other relevant factors are to be considered in the overall
enquiry. The limitation analysis thus involves
the weighing up of competing
values and ultimately an assessment based on
proportionality.5[1]
[46] Where,
as here, the constitutional complaint is based on the failure of the statutory
provisions to accommodate the religious
use of cannabis by the Rastafari, the
weighing-up and evaluation process must measure the three elements of the
government interest,
namely, the importance of the limitation; the relationship
between the limitation and the underlying purpose of the limitation; and
the
impact that an exemption for religious reasons would have on the overall purpose
of the limitation. The government interest
must be balanced against the
appellant’s claim to the right to freedom of religion which also
encompasses three elements: the
nature and importance of that right in an open
and democratic society based on human dignity, equality and freedom; the
importance
of the use of cannabis in the Rastafari religion; and the impact of
the limitation on the right to practice the
religion.5[2] In particular, in
this case, the proportionality exercise must relate to:
“. . . whether the failure to accommodate the appellant’s religious belief and practice by means of the exemption . . . can be accepted as reasonable and justifiable in an open and democratic society based on human dignity, freedom and equality”.5[3]
[47] In
weighing up the competing interests in this case, it is necessary to identify
accurately the interests that are at stake.
The government interest involved
here is not the broad interest in regulating the dependence-producing drugs and
preventing their
abuse as well as trafficking in those drugs. The government
interest involved here is a narrow one — the failure to allow
a religious
exemption for the sacramental use of cannabis. What must be examined in this
regard is the interest that the government
seeks to promote and the impediment
to the achievement of its objectives that would result from the granting of the
exemption.5[4] Put differently,
what must be determined is whether the granting of the religious exemption would
undermine the objectives of the
prohibition.
(a) The nature of the right limited and the scope of limitation
[48] The right to freedom of religion is probably one of the most important of all human rights. Religious issues are matters of the heart and faith. Religion forms the basis of a relationship between the believer and God or Creator and informs such relationship. It is a means of communicating with God or the Creator. Religious practices are therefore held sacred. In Christian Education and in Prince 1, we observed:
“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 their 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.”5[5]
[49] The
right to freedom of religion is especially important for our constitutional
democracy which is based on human dignity, equality
and freedom. Our society is
diverse. It is comprised of men and women of different cultural, social,
religious and linguistic backgrounds.
Our Constitution recognises this
diversity. This is apparent in the recognition of the different
languages;5[6] the prohibition of
discrimination on the grounds of, amongst other things, religion, ethnic and
social origin;5[7] and the
recognition of freedom of religion and
worship.5[8] The protection of
diversity is the hallmark of a free and open society. It is the recognition of
the inherent dignity of all human
beings. Freedom is an indispensable
ingredient of human dignity.
[50] [ Human dignity is an important constitutional value that not only informs the interpretation of most, if not all, other constitutional rights but is also central in the limitations analysis. As we observed in Dawood5[9]:
“The value of dignity in our Constitutional framework cannot therefore be doubted. The Constitution asserts dignity to contradict our past in which human dignity for black South Africans was routinely and cruelly denied. It asserts it too to inform the future, to invest in our democracy respect for the intrinsic worth of all human beings. Human dignity therefore informs constitutional adjudication and interpretation at a range of levels. It is a value that informs the interpretation of many, possibly all, other rights. This Court has already acknowledged the importance of the constitutional value of dignity in interpreting rights such as the right to equality, the right not to be punished in a cruel, inhuman or degrading way, and the right to life. Human dignity is also a constitutional value that is of central significance in the limitations analysis. Section 10, however, makes it plain that dignity is not only a value fundamental to our Constitution, it is a justiciable and enforceable right that must be respected and protected. In many cases, however, where the value of human dignity is offended, the primary constitutional breach occasioned may be of a more specific right such as the right to bodily integrity, the right to equality or the right not to be subjected to slavery, servitude or forced labour.”6[0]
[51] The
impugned provisions criminalise all use and possession of cannabis except when
used for medicinal,6[1] analytical
or research purposes.6[2] They
criminalise the use of cannabis by the Rastafari regardless of where, how and
why it is used. It matters not that they use
it for sacramental purposes as a
central part of the practice of their religion. The impugned provisions do not
distinguish between
the Rastafari who use cannabis for religious purposes and
drug abusers. The effect of the prohibition is to state that in the eyes
of the
legal system all Rastafari are criminals. The stigma thus attached is manifest.
Rastafari are at risk of arrest, prosecution
and conviction for the offence of
possession or use of cannabis. For the appellant, the consequences have gone
beyond the stigma
of criminal conviction. He is now prevented from practising
the profession of his choice. There can be no doubt that the existence
of the
law which effectively punishes the practice of the Rastafari religion degrades
and devalues the followers of the Rastafari
religion in our society. It is a
palpable invasion of their
dignity.6[3] It strikes at the very
core of their human dignity. It says that their religion is not worthy of
protection. The impact of the
limitation is profound indeed.
(b) The importance of the limitation
[52] Yet, there can
be little doubt about the importance of the limitation in the war on drugs.
That war serves an important pressing
social purpose: the prevention of harm
caused by the abuse of dependence-producing drugs and the suppression of
trafficking in those
drugs.6[4] The
abuse of drugs is harmful to those who abuse them and therefore to society. The
government thus has a clear interest in prohibiting
the abuse of harmful drugs.
Our international obligations too require us to fight that war subject to our
Constitution.6[5]
[53] The
government objective in prohibiting the use and possession of cannabis arises
from the belief that its abuse may cause psychological
and physical harm. On
the evidence of the experts on both sides, it is common cause that cannabis is a
harmful drug. However, such
harm is cumulative and dose-related. Uncontrolled
use of cannabis may lead to the very harm that the legislation seeks to prevent.
Effective prevention of the abuse of cannabis and the suppression of trafficking
in cannabis are therefore legitimate government
goals. The conclusion reached
by the courts below in this regard cannot be gainsaid. But does the achievement
of these goals require
a complete ban on even purely religious uses of cannabis
by Rastafari, regardless of how and where it is used?
Could a
religious exemption be granted without undermining the purpose of the
prohibition
[54] The government does not contend that the achievement of
its goals requires it to impose an absolute ban on the use or possession
of
drugs. Nor was it contended that any and all uses of cannabis in any
circumstances are harmful. The use and possession of cannabis
for research or
analytical purposes under the control of the government can hardly be said to be
harmful, let alone an abuse of cannabis.
Similarly, the use of cannabis for
medicinal purpose under the care and supervision of a medical doctor cannot be
said to be harmful.
This is so because a medical doctor will control the dosage
taken and thus ensure that its use does not cause harm. These uses
of cannabis
are exempted because they do not undermine the purpose of the prohibition. It
follows therefore that if the use of cannabis
by the Rastafari is not inherently
harmful or if its use can effectively be controlled by the government to prevent
harm and trafficking
in cannabis, refusal to allow for a religious exemption in
these circumstances can hardly be said to be reasonable and justifiable.
But,
is it so?
[55] Two points need to be made at the outset in this regard.
First, it is significant to bear in mind that the Rastafari use cannabis
in
different circumstances: it may be consumed by smoking it as a cigarette or in a
chalice, eating it as part of a meal or drinking
it as a tonic, or it may be
used in bathing or burnt as an incense at religious ceremonies and gatherings.
While it is not obligatory
to consume it, it is nevertheless required that it
must be used in one form or another. Thus women and children do not partake in
the smoking of cannabis. There are also male adherents who do not smoke it.
Notwithstanding these different circumstances in which
cannabis is used, the
focal point of both the evidence as well as the debate in this Court in
opposition to the relief sought was
the smoking of cannabis which was said to
pose a risk of harm when it is consumed regularly and in large
doses.
[56] The second point is this: the prohibition proscribes all
religious use or possession of cannabis regardless of the circumstances
under
which it is used or the amount used or how it is used. In this regard, it is
significant to note that the evidence of the
appellant is that he partakes in
the use of cannabis at all religious ceremonies and also uses it in the privacy
of his home by burning
it as incense, smoking, drinking and eating it. It is
clear from his evidence that his use of cannabis is not confined to smoking
it.
Nor does he suggest that he considers smoking alone to be central to his
religion. Thus the case that the state had to meet
is how the different uses of
cannabis undermines its interest. Indeed in terms of the order made by this
Court in Prince I the state was directed not only to respond to the
evidence of the appellant setting out how cannabis is used in the religion but
also
indicate the practical difficulties it will encounter if an exemption
allowing the sacramental use of cannabis was granted. The
response required of
the state was thus not confined to smoking cannabis but to all uses of cannabis.
It was therefore incumbent
upon the government to persuade the Court that such a
complete ban on all sacramental uses of cannabis is reasonable and justifiable
by, amongst other things, presenting facts and argument in support of the
justification of such a ban.
[57] We have recently held that where
justification rests on factual and/or policy considerations, the party
contending for justification
must put such material before the Court. The
obligation of government in defending legislation includes not only the
submission
of legal argument but also placing before the Court the requisite
factual material and policy considerations. Failure to do this
may in certain
cases lead to a finding that the limitation is not
justifiable.6[6] And this is such a
case. Such facts had to demonstrate that all religious uses of cannabis by
Rastafari and in any circumstance
pose a risk of harm regardless of how it is
used and that a religious exemption cannot be granted without undermining the
objective
of the statutes. Such facts were necessary in this case because of,
first, the constitutional requirement that in limiting the constitutional
rights
regard must be had to less restrictive means that are available to achieve the
purpose of the limitation; and second, the
constitutional commitment to
tolerance which calls for the accommodation of different religious faiths if
this can be done without
frustrating the objectives of the
government.
[58] There was no evidence that the use of cannabis in
bathing or burning it as an incense poses a risk of harm to the user. Indeed
there was no suggestion that the burning of cannabis as an incense in a
carefully circumscribed ritual context poses any risk of
harm. As incense it is
either burnt in the altar fire or an incense holder. This is done at religious
ceremonies presided over
by priests, of which there are seven in the whole
country, or by assistant priests or elders. Cannabis is also burnt as an
incense
in the privacy of one’s home as the appellant testified. Burning
cannabis as an incense in a ceremonial context under the
supervision of a priest
is far removed from the irresponsible use of cannabis for recreational purposes
or by drug abusers. The
burning of incense is not a practice confined to
Rastafari, it is performed by other religious faiths. For example, it is a
practice
deeply rooted in African traditional worship where the burning of
impepho is essential to communicating with
ancestors.6[7] Ceremonies at which
Rastafari burn cannabis as an incense are very
few.6[8]
[59] I am unable to
agree with the suggestion that burning cannabis as an incense causes harm from
inhalation. This is highly speculative
and is not borne out by the medical
evidence on record. Medical evidence suggests that “prolonged heavy use
or less frequent
use of more potent preparations” poses a risk of harm.
If smoking “a few joints” of cannabis poses no risk of
harm, it is
difficult to see how burning cannabis at a few religious ceremonies and at the
altar or in an incense holder can cause
the harm suggested. In any event, even
if inhalation poses a risk of harm, there is no suggestion that the burning of
cannabis as
an incense cannot be done in a manner that poses no such risk. Nor
is there any suggestion on the evidence that burning cannabis
as an incense in
an incense holder is intended to induce the psychoactive effect of
cannabis.
[60] Just because smoking cannabis is intended to induce a
psychoactive state, it does not follow that all the religious uses of
cannabis
are intended to induce such a state. Indeed, bathing in cannabis can hardly be
said to be intended to induce such a state.
The same is true of burning it as
incense in an incense holder. There is no suggestion that those present are
required to draw
into their lungs the smoke from incense. What the appellant
has said in this regard is that every day must commence with burning
incense,
whether you smoke it or burn it as an incense matters not.
[61] On the
medical evidence on record there can be no question that uncontrolled
consumption of cannabis, especially when it is
consumed in large doses poses a
risk of harm to the user. An exemption that will allow such consumption of
cannabis would undermine
the purpose of the prohibition. However, on the
medical evidence on record it is equally clear that there is a level of
consumption
that is safe in that it is unlikely to pose any risk of harm. The
medical evidence on record is silent on what that level of consumption
is. Nor
is there any evidence suggesting that it would be impossible to regulate the
consumption of cannabis by restricting its
consumption to that safe level. All
that the medical evidence on this record tells us is that the effects of
cannabis are dose-related
and cumulative and that while “prolonged heavy
use or less frequent use of a more potent preparation are associated with many
different problems”, “one joint of dagga or even a few joints”
will not cause any harm. Without further information,
it is not possible to say
whether or not the religious use of cannabis can be allowed without undermining
the prohibition.
[62] Cannabis is smoked in a chalice or burnt as
incense at Nyahbinghis, which are religious ceremonies. There are very few of
these
ceremonies in the Rastafari ritual calendar. Because of the importance
that Rastafari place on the “holy herb” they
prefer to grow cannabis
themselves. Growing, harvesting and curing it is considered to be an art. Its
preparation for smoking in
a chalice follows a special procedure and there is an
elaborate protocol that surrounds the use of the chalice. It is smoked at
religious gatherings or ceremonies presided over either by a priest, an
assistant priest or an elderly. Whether smoking cannabis
in a chalice on these
few occasions can be described as a “prolonged heavy use or use of a more
potent preparation” is
not easy to say on the record. However, even if it
is, there is no suggestion that its consumption at these few and isolated
religious
ceremonies cannot be controlled effectively and limited to the
consumption of the amount that poses no risk of harm.
[63] Yet the
government contended that any exemption would be difficult to administer. In
contending that it would be difficult
to police any exemption the
Attorney-General pointed out certain difficulties including the problem of
identifying bona fide Rastafari;
the source from which cannabis is to be
obtained; and how to safeguard against the abuse of the exemption. Both the
High Court and
the SCA also pointed out these difficulties. But what is
required is to subject the religious use of cannabis to strict control
including
the purpose for which it can be acquired; the persons who may acquire it; the
sources from which it may be acquired; and
the amount that may be lawfully
possessed. It is for the legislature to determine the regulation and control to
which the religious
use of cannabis should be subjected as well as the measures
that should be put in place in order to safeguard against the abuse of
the
exemption. Such regulation and control, whilst directed at enforcing a
legitimate government interest, should bear in mind and
as far as possible
respect the centrality of the different uses of cannabis to the Rastafari
religion.
[64] Any exemption to accommodate the religious use of
cannabis will of course have to be strictly controlled and regulated by the
government. Such control and regulation may include restrictions on the
individuals who may be authorised to possess cannabis; the
source from which it
may be obtained; the amount that can be kept in possession; and the purpose for
which it may be used. In addition,
conditions necessary to safeguard against
using it for some purpose other than that for which the exemption is granted, as
well as
trafficking in cannabis, may be imposed and these may include the
requirement of registration with the relevant authorities; recording
the amount
purchased and the date of such purchase; and where and how it may be used. Any
permit to possess and use cannabis for
the purposes of the exemption may have to
be issued subject to revocation if the conditions of its issue are violated,
such as using
cannabis otherwise than for the purpose of burning it as an
incense or trafficking in cannabis or having in possession more in amount
than
the permit allows.
[65] The fallacy in the argument by the
Attorney-General is that it is premised on the assumption that a religious
exemption will
be granted without the appropriate measures to address the
problems raised by him. The practical problems referred to by the
Attorney-General
and Senior Superintendent Mason, who is the Commander of the
South African Narcotics Bureau, as well as those alluded to by the courts
below
are matters that ought to be dealt with in the legislation that will regulate
the exemption. Indeed, as Senior Superintendent
Mason suggested in his
affidavit, if the exemption were to be allowed
“It also stands to reason that current legislation contained in the Drugs and Drug Trafficking Act . . . and the Medicines Control and Related Substances Act . . . will have to be amended. New regulations pertaining to the procedures and control will have to be formulated.”
[66] There is
no suggestion that these problems cannot effectively be regulated. On the
contrary, the affidavit of Senior Superintendent
Mason, suggests that a permit
system coupled with administrative guidelines and infrastructure for the
administration of such an
exemption may adequately address the practical
problems alluded to by the courts below and the Attorney-General. In the
context
of alluding to the difficulties that will arise from a court-sanctioned
exemption, Senior Superintendent Mason says the following:
“Numerous difficulties are foreseen. For one, what will the financial implication be to the Government to set up and administer an administrative permit system. It should be resolved which government department is to be responsible to administer such a[n] administrative system. The human resource implications [have] to be considered as well as the logistical implications.
In this day and age of corruption in South Africa a permit will have to be developed that will be difficult to forge. Guidelines will have to be developed as to the issue of such permits as well as guidelines in respect of permits, the validity of which has expired or reported lost. Administrative guidelines will have to be developed as to administrative procedures to administer such a system.
A[n] administrative permit system may be structured similar to that of firearms registration, which is administered by the South African Police Service. This will entail that a dedicated comportment authority will have to be established at a national level to administer the exemption. Personnel will have to be made available on station level to process applications for exemption. Proof of identity by means of identity documents will not suffice as a means of verifying identity. It is foreseen that the fingerprints of applicants will have to be taken and forwarded to the South African Police Criminal Record Centre for processing. A registration system will have to be developed for record and control purposes. Tenders will have to be obtained to print permits. Such permits should not only include personal particulars of the applicant but perhaps a[n] imprint of thumb to verify that the holder of such permit is in fact the person identified upon the permit. A permit should also include some feature so as to make it difficult to forge.”
[67] I
do not read the above excerpt from the affidavit of Senior Superintendent Mason
as suggesting that, with the appropriate statutory
amendments and the
appropriate administrative infrastructure, it would be difficult to administer a
religious exemption. On the
contrary, his evidence suggests measures that will
have to be adopted in order to administer a religious exemption effectively.
And these measures include legislative amendments, regulations pertaining to the
procedure and control, and the administrative infrastructure
to administer the
exemption. Neither the Minister of Health nor the Attorney-General suggested
that these measures would be difficult
to achieve.
[68] Nowhere does
Senior Superintendent Mason suggest that the problems alluded to by the
Attorney-General cannot adequately be addressed
by appropriate legislation and
other measures. Neither the Minister of Health nor the Attorney-General
suggested that it would be
impossible to address these problems by appropriate
legislation and administrative infrastructure. It must therefore be taken that
the control and regulation as well as the administration of the exemption
envisaged by Mason is not impossible. The problem is that
government has never
given consideration to these matters.
[69] The suppression of illicit
drugs does not require a blanket ban on the sacramental use of cannabis when
such use does not pose
a risk of harm. What is required is the regulation of
such use in the same manner as the government regulates the exempted uses
of
drugs, including the more dangerous and addictive drugs, for which there is no
doubt a huge illicit market. As the Attorney-General
points out in his
affidavit, the distribution of cannabis for medicinal purposes is strictly
regulated under the Drugs Act.6[9]
It may be obtained for medicinal purposes only and under the care and
supervision of a medical
practitioner;7[0] there is a
specified list of individuals who may acquire
it;7[1] such acquisition is subject
to the requirements or conditions set out in the Medicines Act or regulations or
a permit issued under
the Medicines
Act;7[2] and the source from which
it may be obtained is
regulated.7[3]
[70] Indeed,
under the Medicines Act, medicines and drugs that have potential to cause harm
are subjected to much stricter regulation,
especially concerning the manner in
which they may be dispensed to the public. There are specific provisions
indicating how they
may be sold or dispensed, by who and to whom. The main
control is that these drugs only reach the public under the responsibility
of
qualified health professionals acting according to prescribed standards. Such
professionals are required, for example, to maintain
books and records
containing all the prescribed particulars of the sale of scheduled substances,
including the actual prescription
of a medical practitioner, the date of sale
and the quantity of medication sold. Possession or use of scheduled substances
outside
the provisions of the Medicines Act constitutes a criminal offence and
gives rise to penalties contained in that
statute.7[4] There is no suggestion
that dispensing cannabis to the seven priests cannot, with necessary
adaptations, be subjected to the same
or some similar control. Or for that
matter, allowing priests to grow a limited number of cannabis plants for
religious use.7[5] These are mere
illustrations of how the problem of the exemption can be regulated. It is for
Parliament to craft a workable exemption.
[71] It was also contended
that any exemption would run foul of our international obligations. In
rejecting the constitutional challenges,
both the SCA and the High Court also
emphasised our international obligations. Our international obligations in
relation to the
war on drugs must be put in perspective.
[72] The
relevant international instruments are the Single Convention on Narcotic Drugs,
1961 as amended by the 1972 Protocol; the
Convention on Psychotropic Substances,
1971;7[6] and the Convention Against
Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988. In terms
of article 36(1)(a) of
the Single Convention, the criminalisation of the listed
forms of conduct must take place subject to each Party’s
“constitutional
limitations”.7[7] Thus, if
under our Constitution an exemption for the religious use of cannabis is
required, such an exemption would not fall foul
of the Single Convention as the
implementation of the provisions of the Convention are subject to our
Constitution.7[8] Similarly, the
implementation of the 1988 Convention is made subject to the
“constitutional principles” of each
Party.7[9] It follows that these
international conventions are no bar to an exemption that may be required by our
Constitution.
[73] It is true that the granting of a religious exemption
for a limited use of cannabis in circumstances that do not pose a risk
of harm
has certain risks. Such risks involve the use of cannabis for purposes other
than those allowed by the exemption and the
illegal passing of cannabis lawfully
acquired to third parties. However, these risks are inherent in any exemption.
They did not
preclude the government from allowing exemptions for medicinal,
research or analytical purposes. To minimise these risks the government
subjected the use of drugs for these purposes to strict control such as
restricting persons who may acquire drugs; prescribing the
source from which
they may be obtained; requiring the recording of the date of sale and the
quantity of drugs sold; and making possession
or use of drugs outside the
statutory provisions subject to criminal penalties. These restrictions minimise
the risk of illegal
use or trafficking in drugs.
[74] The above analysis
illustrates that the prohibition contained in the impugned provisions is too
extensive. It encompasses uses
that have not been shown either to pose a risk
of harm or to be incapable of being subjected to such control and regulation so
as
not to pose risk of harm. Taking the example of burning cannabis in a few
limited religious ceremonies, this has not been shown
to pose any risk of harm
or to be incapable of being subjected to strict control and regulation. The
suggestion that burning cannabis
as an incense may cause harm from inhalation,
is highly speculative. Apart from this, the available evidence suggests that
up to
a certain level, even smoking cannabis is not necessarily harmful. This
must be viewed against the fact that, in general, the evidence
of nature and the
extent of harm is a subject of medical controversy. In my view, a
constitutional right cannot be denied on the
basis of mere speculation
unsupported by conclusive and convincing evidence.
[75] There are two
points that must be emphasised. First, the relief sought by the appellant is an
order declaring that the impugned
provisions are unconstitutional because they
are overbroad. It is the duty of this Court to say whether that is so. We must
determine
what the appellant and other Rastafari are entitled to, consistent
with their constitutional rights. The appellant and the adherents
of his
religion are entitled not to have the practice of their religion proscribed if
it can be practised in a manner that does not
undermine the government interest.
We are not concerned with what would or would not meet the requirement of the
Rastafari religion.
Nor are we concerned with what would be effective practice
of the religion. In my view, it is undesirable for the courts to be
concerned
with questions as to what, as a matter of religious doctrine, would be an
effective practice of a particular religion.
That enquiry is irrelevant here
where the question is whether the impugned provisions are
overbroad.
[76] Second, it is not demeaning to their religion if we find
that the manner in which they practice their religion must be limited
to conform
to the law. Whether this is what they want matters not. Nor is it to
underestimate in any way the very special meaning
that the use of the
“holy herb” has for the self-defining or ethos of the Rastafari
religion. As we observed in Christian Education and also in Prince
1, the balancing exercise requires a degree of reasonable accommodation from
all concerned. Rastafari are expected, like all of us,
to make suitable
adaptations to laws that are found to be constitutional that impact on the
practice of their religion. A narrow
and a closely defined exemption that is
subject to manageable government supervision does not oblige them “to make
an absolute
and strenuous choice between obeying a law of the land or following
their conscience. They can do both
simultaneously.”8[0]
The
evaluation of proportionality
[77] In weighing the competing interests
and in the evaluation of proportionality, it is necessary to examine closely the
relation
between the complete ban on the sacramental use or possession of
cannabis by the Rastafari and the purpose of the limitation as well
as the
existence of the less restrictive means to achieve this
purpose.8[1] The prohibition is
ostensibly aimed at the abuse of harmful drugs and trafficking in those drugs.
Hence the use for medicinal purposes
under the care and supervision of a medical
practitioner or for analytical or research purposes are not hit by the
prohibition.
Yet a sacramental use of cannabis that has not been demonstrated
to be harmful, such as the burning of cannabis as an incense, is
proscribed.
The ban on religious use is so complete that a religious practice that requires
followers to bow before a cannabis plant
and pray, is hit by the prohibition.
That such use of cannabis is not harmful to the health of the followers matters
not.
[78] The policy behind the impugned provisions should not be based
on the idea that any use of cannabis in itself represents an unacceptable
risk
to the user and society. The policy behind these statutes should recognise that
whether or not such a risk exists will depend
partly on the circumstances in
which it is used and the extent of the use. The prevention and control of the
risk of harm caused
by abuse of dependence-producing drugs to society and the
individual must be made the primary objective of the anti-drug policy in
the
light of this consideration. Yet in so far as the Rastafari are concerned, the
government pursues a policy based upon the assumption
that all uses of cannabis
by Rastafari and under any circumstances represent an unacceptable risk to
society and the individual.
This policy ignores the reality that there are
various uses of cannabis by the Rastafari, some of which have not been shown to
pose
any risk of harm and that can be accommodated without undermining the
objectives of the prohibition.
[79] In a constitutional democracy like
ours that recognises and tolerates diverse religious faiths, tolerance of
diversity must
be demonstrated by accommodating the practices of all faiths, if
this can be done without undermining the legitimate government interest.
Thus
when Parliament is faced with a religious practice that involves some conduct
that runs counter to its objectives, the proper
approach under our Constitution
is not to proscribe the entire practice but to target only that conduct that
runs counter to its
objectives, if this can be done without undermining its
objectives. This approach is consistent with the constitutional commitment
to
tolerance and accommodation of different religious faiths implicit in our
Constitution. The requirement that less restrictive
means must be used in the
limitation of constitutional rights is indeed a manifestation of this
commitment.
[80] Similarly, when Parliament is faced with the need to
proscribe a substance under the statutes in question, the risk posed to
health
should not be the only criterion. It must also have regard to other factors
such as: various uses to which the substance
may be put, especially those that
do not pose any risk of harm; the significance of the various uses to society;
whether the needs
of society can, if necessary, be accommodated without
undermining the objectives of the prohibition; and the possibility of acting
effectively against the abuse of the substance. These factors no doubt
influenced the decision by Parliament to exempt from the
general prohibition the
possession of drugs, including cannabis, for medicinal, analytical or research
purposes.
[81] I accept that the goal of the impugned provisions is to
prevent the abuse of dependence-producing drugs and trafficking in those
drugs.
I also accept that it is a legitimate goal. The question is whether the means
employed to achieve that goal are reasonable.
In my view, they are not. The
fundamental reason why they are not is because they are overbroad. They are
ostensibly aimed at
the use of dependence-producing drugs that are inherently
harmful and trafficking in those drugs. But they are unreasonable in that
they
also target uses that have not been shown to pose a risk of harm or to be
incapable of being subjected to strict regulation
and control. The net they
cast is so wide that uses that pose no risk of harm and that can effectively be
regulated and subjected
to government control, like other dangerous drugs, are
hit by the prohibition. On that score they are unreasonable and they fall
at
the first hurdle. This renders it unnecessary to consider whether they are
justifiable.8[2]
[82] It
follows, therefore, that the prohibition contained in the impugned provisions is
constitutionally bad because it proscribes
the religious use of cannabis even
when such use does not threaten the government interest. But it is bad to that
extent, and only
that extent. In view of this conclusion, it not necessary to
consider other constitutional challenges.
Appropriate
remedy
[83] The constitutional defect in the two statutes is that they
are overbroad. They are not carefully tailored to constitute a minimal
intrusion upon the right to freedom of religion and they are disproportionate to
their purpose. They are constitutionally bad because
they do not allow for the
religious use of cannabis that is not necessarily harmful and that can be
controlled effectively. Ordinarily,
the appropriate remedy in these
circumstances would be the “reading in” of the appropriate
exemption.
[84] However, here the question of how the exemption can be
formulated cannot be answered with a sufficient degree of precision on
the basis
of constitutional analysis. There are a number of questions that will have to
be answered in relation to the control and
regulation to which such an exemption
is to be subjected and these include: who may grant approval for the religious
use and possession
of cannabis; who may be granted such exemption; the quantity
of cannabis that may be possessed by authorised persons; and the legal
source of
cannabis. In addition, the dispensing of cannabis to authorised persons for
religious purposes must be subjected to strict
control. Standards must be
developed that will govern the conduct of such authorised persons. There are a
number of options in
relation to these questions. It is the task of the
legislature which has the necessary resources to consider such options and make
its choice. An attempt by this Court to craft an exemption may well result in
an undue intrusion into the legislative sphere. The
crafting of the appropriate
exemption must therefore be left to Parliament.
[85] It follows
therefore that the appropriate remedy is to declare the provisions of section
4(b) of the Drugs Act and section 22A(10)
of the Medicines Act invalid to the
extent that they do not allow for an exemption for the religious use, possession
and transportation
of cannabis by bona fide Rastafari. The prohibition that
relates to cannabis can be severed from the other parts of the impugned
provisions. These sections are central to the control of a number of dangerous
drugs that are set out in the schedules to the two
statutes. Therefore a
limited notional severance is not inappropriate.
[86] However, a
declaration of invalidity that takes immediate effect poses a real danger to
society. It would result in an uncontrolled
use of cannabis and this will
undermine the admittedly legitimate governmental goal of preventing the harmful
effects of dependence-producing
drugs and trafficking in those drugs.
Parliament must therefore be afforded the opportunity to remedy the defects in
these two statutes.
The declaration of invalidity should therefore be suspended
for a period of twelve months for that purpose. The appellant did not
contend
otherwise.
[87] In his heads of argument, the appellant sought an
interim constitutional exemption for himself and all other Rastafari during
the
period of the suspension of the order of invalidity. The considerations that
apply in relation to the “reading in”
of an exemption apply equally
in regard to the granting of an interim constitutional exemption. Before any
exemption is granted
it is necessary not only to determine the conditions under
which it may be granted, but also to ensure that an administrative
infrastructure
that is necessary to manage and administer the exemption is in
place. This may include, as Senior Superintendent Mason points out
in his
affidavit, the administrative infrastructure to manage the permit system and the
administrative guidelines to regulate the
exemption. Having regard to the
number of issues that must still be resolved in relation to the regulation to
which the religious
use of cannabis must be subjected, it is not appropriate for
this Court to grant such an exemption. Parliament must first resolve
these
issues and determine the conditions that are to govern the granting of a
religious exemption.8[3] Until
these conditions are determined, the granting of an exemption will undermine the
objectives of the limitation. It follows
therefore that a court-sanctioned
exemption is not appropriate.
[88] The appellant has also sought an
order directing the Law Society to register his contract of community service.
The Law Society
declined to register the appellant’s contract of community
service based on his two previous convictions for possession of
cannabis and his
declared intention to continue breaking the law. The validity of the decision
of the Law Society depends upon whether
possession or use of cannabis by persons
in the position of the appellant is a criminal offence. As pointed out
previously, it cannot
be said at this stage whether Parliament will broaden the
category of persons who may be authorised to possess and use cannabis for
religious purposes to include non-priests such as the appellant. The granting
of this relief therefore will pre-empt legislative
action. No doubt any further
delay is prejudicial to the appellant who is understandably anxious to get on
with his life. But until
such time as it is determined whether the appellant
falls within the category of persons who may lawfully possess cannabis, the
obstacle
besetting his way to the profession of attorneys remains. The question
whether or not the appellant could be regarded as a fit and
proper person to be
an attorney even if not within such category, was not pursued before us, and I
express no view on it.
[89] Finally, there is the question of costs. If
the appellant were to succeed, there is no reason why he should be deprived of
the costs. The Law Society did not play any active role in this litigation and
there is therefore no reason why it should be ordered
to pay costs. The
Minister of Health only intervened after the proceedings had reached this Court
and the liability for costs should
reflect this.
[90] In the event, I
would have proposed that the following order be made:
(a) The appeal is upheld and the decision of the Supreme Court of Appeal is set aside. The provisions of section 4(b) read with paragraph 1 of Part III
of Schedule 2 of the Drugs and Drug Trafficking Act 140 of 1992 and section 22A(10)(a) read with Schedule 8 of the Medicines and Related Substances Control Act 101 of 1965 are inconsistent with the Constitution to the extent that they prohibit the use or possession of cannabis by Rastafari adherents for bona fide religious purposes and are declared invalid to that extent.
(b) The order of invalidity is suspended for a period of 12 months to afford Parliament the opportunity to remedy the defects in the impugned provisions.
(c) The Minister of Justice, the Minister of Health and the Attorney-General are ordered to pay the costs of this appeal, including the costs incurred in the courts below, except that the Minister of Health is only liable for the costs of the appeal in this Court.
Mokgoro and
Sachs JJ and Madlanga AJ concur in the judgment of Ngcobo J.
CHASKALSON
CJ, ACKERMANN AND KRIEGLER JJ:
[91] This judgment concerns the second
phase of an appeal from the Supreme Court of Appeal (the SCA) to this Court on
the constitutionality
of the statutory prohibition against the possession and
use of cannabis sativa, commonly known in this country as dagga. The matter
first came before this Court in November 2000 when, after extensive argument,
leave was given for the appellant to deliver further
evidence on affidavit and
for the Director of Public Prosecutions, the Western Cape (the DPP) to respond.
The judgment containing
that order has been reported, as have the judgments of
the Cape of Good Hope High Court and the SCA, where the matter was dealt with
in
the first instance and on appeal.[1]
The background to the matter has been fully set out in those three judgments and
in the judgment of Ngcobo J in the current proceedings.
The briefest of
résumés will therefore suffice.
[92] The appellant is an
adherent of the Rastafari religion. He wants to gain admission to the attorneys
profession but has two
convictions for the possession of
cannabis.[2] He disclosed these
convictions to the Cape Law Society when he applied for his articles to be
registered, saying that he was a Rastafari
and was required by his religion to
use cannabis. He went on to say that notwithstanding the legislation that
prohibited such use,
he would continue to use cannabis for religious purposes in
the future. The Law Society refused to register his articles taking
the view
that attorneys, as officers of the court, had to obey the law. The appellant
then applied to the Cape High Court for that
decision to be reviewed and set
aside. The appellant failed in the High Court and his appeal to the SCA was
dismissed.
[93] When the dispute reached this Court, its focus had
ceased to be whether the Law Society’s decision was correct. It had
become limited to whether the legislation prohibiting the possession and use of
cannabis was consistent with the Constitution. The
appellant conceded that if
the legislation were valid, the Law Society would be entitled to refuse to
register his articles of clerkship.
The Law Society responded by saying that if
the law were to be changed or to be found to be inconsistent with the
Constitution,
it would have no objection to registering the articles of
clerkship entered into by the appellant. The Law Society then withdrew
from the
proceedings and was not represented in this Court.
[94] The dispute
became one between the appellant and the state, represented by the DPP. The
primary issue in the appeal to this
Court was whether the SCA was correct in
holding that the legislation was not inconsistent with the Constitution. In the
SCA and
again in this Court the challenge to the legislation was not against the
criminalisation of the possession and use of cannabis.
It was a limited one,
namely whether the failure to provide an exception in respect of the use of
cannabis for religious purposes
by Rastafari, infringed their religious rights
under the Constitution.
[95] Because the focus had previously been
elsewhere, there was insufficient information on record for the debate as to the
feasibility
of such an exception, from the point of view of adherents of the
Rastafari religion as also from the point of view of those responsible
for the
enforcement of the country’s anti-drug laws, to be properly canvassed.
Accordingly, paragraphs 2 and 3 of the order
issued by this Court on 12 December
2000 read as follows:
“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;
(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 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:
(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 s 4(b) of the Drugs Act and s 22A(10) of the Medicines Act, if at all.”[3]
[96] Pursuant
to that order, the appellant filed a substantial body of additional factual and
opinion material, to which the DPP
responded in like vein. All of this has been
comprehensively dealt with in the careful and detailed judgment of Ngcobo J.
The appellant’s
claim for a “religious exception” is in
substance a claim that a general prohibition that fails to take account of the
religious freedoms enshrined in the Constitution is, for that reason,
inconsistent with the Constitution. As Ngcobo J points out
in his
judgment,[4] an exemption is a
remedy which allows the prohibition to stand, whilst at the same time respecting
the religious freedoms.
[97] We have considered the judgment of Ngcobo J
and are in general agreement with his analysis of the facts. No purpose would
be
served by traversing these matters again. We endorse the material finding
that Rastafarianism is a religion and that the disputed
legislation prohibiting
the possession and use of cannabis trenches upon the religious practices of
Rastafari. In so far as there
are differences between us on material issues,
that will appear from this judgment.
[98] We also agree that the
disputed material tendered in terms of Rule 30 is not admissible. Rule 30 makes
provision for placing
factual material before the Court if such facts are
“common cause or otherwise incontrovertible”, or are of an
“official,
scientific, technical or statistical nature capable of easy
verification”. A dispute as to the facts may, and if genuine usually
will, demonstrate that they are not “incontrovertible” or
“capable of easy verification”. Where that is
so, and it is in the
present matter, the material will be inadmissible. Ultimately, admissibility
depends on the nature and substance
of the dispute. It is in this sense that
the dictum in S v Lawrence; S v Negal; S v
Solberg,[5] to the effect that
the rule has no application to disputed facts, should be
understood.
The use of cannabis by Rastafari
[99] The
appellant states that the casual or recreational use of cannabis is condemned by
true Rastafari; true Rastafari use cannabis
for religious purposes only. It
appears from the evidence, however, that such use for religious purposes could
be extensive. According
to the appellant cannabis is used at religious
gatherings and also at places and times when religious gatherings are not being
held.
He describes his own use of cannabis as follows:
“I perform the rituals prescribed by my religion according to the tenets of my religion and observe the religious ceremonies associated with births, marriages and other gatherings such as the Nyabinghi, which is similar to a church service. Cannabis is used as a symbol and I partake of the use of cannabis at these ceremonies. I also use cannabis, by either burning it as incense or smoking, drinking or eating it in private at home as part of my religious observance. The object of using cannabis, by followers of the Rastafari religion, is to create unity and to assist them in re-establishing their eternal relationship with their creator. The use of cannabis by the followers of the Rastafari religion is not to create an opportunity for the casual use of cannabis.”
[100] The appellant says that
he uses about 5 grams of cannabis daily for meditational purposes. Other
Rastafari may use more, whilst
some may use less. Both the rate and manner of
use varies from member to member, although smoking it seems the most common
method.
The appellant confines his use to smoking, preferring “not to
puff the holy herb before work and use(s) it maximum twice per
day after
work”. He acknowledges, however, that as in any religion there are
“good” and “bad” adherents
and thus some who use
cannabis excessively and/or recreationally. Although there is no set norm or
generally accepted pattern, such
use is condemned by true
Rastafari.
[101] Their religious gatherings need not take place in a
built up structure or at a particular venue but can be conducted at any
place
where two or more Rastafari come together in “Jah’s” name.
The religion does not regulate the use or possession
of cannabis by its members
nor is there any organisation that could provide internal supervision of their
acquiring, transporting,
possessing or using it. Indeed, on the evidence there
are too few adherents of the religion in the country and they are too thinly
spread and loosely associated for truly reliable and informative answers to be
possible in response to most of the questions posed
in paragraph 2 of this
Court’s order of 12 December 2000. In any event, it appears to be in the
very nature of the religion
that there are no formal organisational structures
that could compile and maintain hard data of the kind envisaged by the
Court’s
questions.
[102] The appellant’s evidence concerning
the use of cannabis and its centrality to the practice of the Rastafari religion
is supported by the appellant’s expert Professor Yawney whose evidence on
this issue was not disputed by the state, and was
placed before this Court by
consent. According to Professor Yawney, cannabis is consumed by Rastafari
because of their belief that
it
“ . . . encourages inspiration and insight through the process of sudden illumination. Sociologists would call this a visionary state characterised by the experience of oneness or interconnectedness. Rastafari insist there is a duty incumbent upon them to praise the creator in this way”.
[103] Although the use of cannabis is apparently
not obligatory, it is clear from the evidence of the appellant and Professor
Yawney
that its use both as an individual and communal activity, at religious
gatherings or elsewhere, is regarded by most Rastafari as
an essential part of
the religion. The use is extensive and takes different forms, including smoking
it, burning it, using it as
incense, in the preparation of food and drink, and
in bathing.
Legislation prohibiting the possession and use of
cannabis
[104] The possession and use of cannabis is prohibited by
section 4(b) of the Drugs Act and section 22 A(10) of the Medicines Act
referred
to above.[6] It is an hallucinogen
which has an intoxicating effect that is cumulative and
dose-related.[7] There are only
about ten thousand Rastafarians in South Africa and the legislation is not aimed
at them. Its purpose is to protect
the general public against the harm caused
by the use of drugs. Cannabis is but one of several substances prohibited under
this
legislation and its prohibition is not peculiar to South Africa. The
possession and use of cannabis is prohibited in many countries,
and it is listed
as a prohibited substance in the international instruments referred to by Ngcobo
J in his
judgment.[8]
[105] Sachs J
refers to the history of the prohibition of the use of cannabis in South
Africa.[9] Whatever that history
might have been,1[0] it is not in
our view relevant to the constitutionality of the present legislation. The
constitutionality of this legislation is
derived first from the provisions of
the interim Constitution and later of the 1996 Constitution. These
constitutions continued
in force all law that existed when they were adopted,
subject only to consistency with their terms. Save for the argument on the
religious exception, which we have dealt with fully in our judgment, it was
never suggested that the laws as such were inconsistent
with the interim
Constitution or the 1996 Constitution. It is also abundantly clear from the
attitude adopted by the government
in this matter, that it does not consider
these laws to be an illegitimate inheritance from the past; it considers them
legitimate
and necessary provisions of our present criminal law legislation and
international obligations.
[106] The then Minister of Justice stated in
an affidavit lodged in the High Court proceedings:
“The provisions of the two Acts have been placed on our statute books for compelling reasons. The need to suppress the illicit use, possession and trafficking in drugs, such as cannabis, is an urgent and pressing one. There is no doubt that the effect of prohibition of the abuse of a legal drug, such as cannabis, which results in severe damage to its users, is a pressing social purpose. The government of the Republic of South Africa simply has to take active steps to suppress the use, possession and trafficking of illicit drugs.”
He also stated that,
“Throughout the jurisdictions of the world, the use, possession, acquisition, importation and trafficking in cannabis is regarded as a criminal offence. In South Africa too, it is an offence which is applicable equally to all its citizens.”
Although the appellant disputed the
allegations made concerning the harm done by users of cannabis, he did not
suggest that the prohibition
of the use and possession of cannabis had any
purpose other than that attested to by the Minister.
[107] The prohibition
against the possession and use of cannabis is thus part of a worldwide attempt
to curb its distribution, of
which the present government is fully supportive.
Whether decriminalisation of the possession and use of small quantities of
cannabis
is a more appropriate response to the problem than criminalisation, was
at no stage suggested and is not an issue in this appeal.
It is not an issue on
which this Court should comment in these proceedings.
[108] In a
democratic society the legislature has 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 must
act consistently with the Constitution, but if it does that,
courts must enforce the laws whether they agree with them or
not.
[109] The question before us, therefore, is not whether we agree
with the law prohibiting the possession and use of cannabis. Our
views in that
regard are irrelevant. The only question is whether the law is inconsistent
with the Constitution. The appellant
contends that it is because it interferes
with his right to freedom of religion and his right to practise his religion.
It is to
that question that we now turn.
Freedom of religion and the
criminal law
[110] Section 15(1) of the Constitution provides
that:
“Everyone has the right to freedom of conscience, religion, thought, belief and opinion.”
Section 31 provides that:
“(1) Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community –
(a) to enjoy their culture, practise their religion and use their language; and
(b) to form, join and maintain cultural, religious and linguistic associations and other organs of civil society.
(2) The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights.”
The right of
an individual to practise his or her religion is part of the section 15(1)
right.1[1] The associational right,
to practise religion in association with others, is protected by section 31.
The appellant relies on his
individual right to use cannabis in the privacy of
his home and elsewhere, and on his associational right to use cannabis with
other
Rastafari on appropriate occasions.
[111] We agree with Ngcobo J
that the legislation criminalising the use and possession of cannabis limits the
religious rights of
Rastafari under the Constitution, and that what has to be
decided in this case is, whether that limitation is justifiable under section
36
of the Constitution. It is in regard to this question that the respective views
of Ngcobo J and ourselves diverge. For the reasons
that follow, we do not
believe that it is incumbent on the state to devise some form of exception to
the general prohibition against
the possession or use of cannabis in order to
cater for the religious rights of Rastafarians.
[112] Sections 15(1) and
31 of the Constitution are wide-ranging provisions protecting both believers and
non-believers, and all
religions, large or small, irrespective of their creeds
or doctrines. Rastafari are a small and marginalised group. The fact that
they
are a very small group within the larger South African community is no reason to
deprive them of the protection to which they
are entitled under the Bill of
Rights. On the contrary, their vulnerability as a small and marginalised group
means that the Bill
of Rights has particular significance for them. The
interest protected by sections 15(1) and section 31 is
“ . . . not a statistical one dependent on a counter-balancing of numbers, but a qualitative one based on respect for diversity.”1[2]
[113] The
appellant does not dispute that the legislation prohibiting the possession and
use of cannabis by the general public serves
a legitimate government purpose.
He accepts that it does, but contends that his religion requires him to use
cannabis, and that
out of respect for the religious rights of himself and other
Rastafari, the legislation ought to have made an exception in their
favour
permitting such use for religious purposes.
[114] In the proportionality
analysis required by section 36 of the
Constitution,1[3] there can be no
doubt that the right to freedom of religion and to practise religion are
important rights in an open and democratic
society based on human dignity,
equality and freedom, and that the disputed legislation places a substantial
limitation on the religious
practices of Rastafari. It must also be accepted
that the legislation serves an important governmental purpose in the war against
drugs. In substance, the appellant contends that the legislation, though
legitimate in its purpose and application to the general
public, is overbroad
because it has been formulated in a way that brings within its purview the use
of cannabis by Rastafari that
is legitimate and ought not to be prohibited. A
challenge to the constitutionality of legislation on the grounds that it is
overbroad
is in essence a challenge based on the contention that the legitimate
government purpose served by the legislation could be achieved
by less
restrictive means.
[115] [ In Christian Education South Africa v Minister of Education1[4] this Court held:
“The underlying problem in any open and democratic society based on human dignity, equality and freedom in which conscientious and religious freedom has to be regarded with appropriate seriousness, is how far such democracy can and must go in allowing members of religious communities to define for themselves which laws they will obey and which not. Such a society can cohere only if all its participants accept that certain basic norms and standards are binding. Accordingly, believers cannot claim an automatic right to be exempted by their beliefs from the laws of the land. At the same time, the state should, wherever reasonably possible, seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law.”
[116] The unchallenged general
prohibition in the disputed legislation against the possession or use of harmful
drugs is directed
in the first instance to cutting off the supply of such drugs
to potential users. It seeks to address the harm caused by the drug
problem by
denying all possession of prohibited substances (other than for medical and
research purposes) and not by seeking to penalise
only the harmful use of such
substances. This facilitates the enforcement of the legislation. Persons found
in possession of the
drug are guilty of an offence, whether they intend to use
it for themselves or not, and irrespective of whether its eventual use
will
indeed be harmful. This method of control is actually prescribed by the 1961
Single Convention on Narcotic
Drugs1[5] to which South Africa is a
party.
[117] The state was not called upon to justify this method of
controlling the use of harmful drugs. The validity of the general
prohibition
against both possession and use was accepted. The case the state was called
upon to meet in this Court was that in addition
to the medical and research
exemptions contained in the legislation, provision should also have been made
for the use of cannabis
for religious purposes by members of the Rastafari
religion.
[118] We are accordingly unable to agree with the significance
attached by Ngcobo J to the fact that certain of the uses to which
cannabis is
put by Rastafari are not harmful. Subject to the limits of self-discipline, the
use may or may not be harmful, but that
holds also for non-Rastafarians who are
prohibited from using or possessing cannabis, even if they use it sparingly and
without harming
themselves.
Foreign law
[119] [ In the United States of America similar contentions to that raised by the appellant have been rejected by State and Federal Courts. These decisions are referred to in the judgments of the United States Supreme Court in Employment Division, Department of Human Resources of Oregon v Smith.1[6]
[120] Smith’s
case concerned the criminal prohibition of an hallucinogenic drug Peyote for
sacramental purposes at religious ceremonies
of the Native American Church. It
is similar in some respects to the case before us for the contention there was
that the religious
motivation for using Peyote placed the litigants
“...beyond the reach of a criminal law that is not specifically directed at their religious practice, and that is concededly constitutional as applied to those who use the drug for other reasons.”1[7]
[121] The majority of the Court rejected this contention
holding that the right to the free exercise of religion
“does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his or her religion prescribes (or proscribes).”1[8]
To
allow this, the majority held,
“would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind - ranging from compulsory military service . . . to the payment of taxes . . . to health and safety regulations such as manslaughter and child neglect laws, . . . compulsory vaccination laws, . . . drug laws, . . . and traffic laws; . . . to social welfare legislation such as minimum wage laws, . . . child labour laws, . . . animal cruelty laws, . . . environmental protection laws, . . . and laws providing for equality of opportunity for the races . . . . The First Amendment’s protection of religious liberty does not require this.”1[9]
[122] The
minority, in an approach that is more consistent with the requirements of our
Constitution, took a different view. They
agreed that the First Amendment
insofar as it applies to the practice of religion, as distinct from belief, is
not absolute. It
could be subordinated to a general governmental interest in
the regulation of conduct, but only if the government were able to justify
that
“by a compelling state interest and by means narrowly tailored to achieve
that interest”. One of the minority,
O’Connor J, held that
notwithstanding this, the state’s overriding interest in preventing the
physical harm caused by
drug use constituted sufficient justification for the
interference with religious freedom. However, Blackmun J (with whom Brennan
J
and Marshall J concurred) reached a different conclusion. He drew attention to
the narrow and circumscribed ritual context in
which Peyote is used by the
Native American Church in its religious ceremonies. The use is isolated and
confined to specific ceremonial
occasions where it is eaten in a
“carefully circumscribed ritual context” closely analogous to the
sacramental use of
wine by the Roman Catholic
Church.2[0] According to the
evidence in that case the Peyote plant is extremely bitter. Eating it is
unpleasant, leading to nausea and other
“unpleasant physical
manifestations”and. as a result it is seldom used by persons who are not
members of the Church.
The Church does not sanction the use of Peyote other
than on ceremonial occasions and opposes the sale or use of Peyote for
non-sacramental
purposes. Because of the importance of the ceremonial use of
Peyote by the Native American Church a number of States had made provision
for
such use in their legislation, and it appeared that this had not presented any
practical difficulties in the enforcement of their
laws prohibiting the
possession and use of harmful drugs.
[123] Blackmun J placed
considerable emphasis on the circumscribed and limited though important use made
of Peyote in the ceremony
and the difference between such use, and the more
general religious use of drugs such as cannabis, which had been rejected in
other
cases. He said:
“Allowing an exemption for religious Peyote use would not necessarily oblige the State to grant a similar exemption to other religious groups. The unusual circumstances that make the religious use of Peyote compatible with the State’s interests in health and safety and in preventing drug trafficking would not apply to other religious claims. Some religions, for example, might not restrict drug use to a limited ceremonial context, as does the Native American Church. Some religious claims, involve drugs such as marijuana and heroin, in which there is a significant illegal traffic, with its attendant greed and violence, so that it would be difficult to grant a religious exemption without seriously compromising law enforcement efforts. That the State might grant an exemption from religious peyote use, but deny other religious claims arising in different circumstances, would not violate the Establishment Clause. Though the State must treat all religions equally, and not favor one over another, this obligation is fulfilled by the uniform application of the ‘compelling interest’ test to all free exercise claims, not by reaching uniform results as to all claims.”2[1]
[124] The
appellant referred us to a decision of the Supreme Court of
Guam2[2] in which it was held that
an offence, prohibiting the importation of cannabis into Guam, infringed the
religious rights of Rastafari
under the Organic Act of Guam, which is its
Constitution. Guam is a territory subject to the federal law of the United
States of
America and also to the United States Constitution, but not
incorporated into the United States. The case turned on the fact that
the
government of Guam had placed no evidence before the Court to show that the
prohibition served a compelling government interest.
The Court held that in the
circumstances it was
“ . . . unable to make the evaluation of whether a compelling state interest is embodied in the instant statute or whether that interest is achieved by the least restrictive means.”2[3]
The
decision has been taken on appeal and as it turned on the paucity of the record
is of little assistance to us in the present case.
Here the state presented
evidence relating not only to the individual and societal harm caused by the use
of cannabis but also to
the importance of maintaining the blanket prohibition on
possession in seeking to limit the illegal traffic in
cannabis.2[4]
[125] [ The appellant also relied on a decision of the Ontario Appeal Court in R v Parker2[5] in which it was held that section 4 of the Controlled Drugs and Substances Act 1996 was unconstitutional because it did not provide for access to cannabis for those requiring it for medical treatment. The Act contained a provision authorising the minister of health to grant an exemption for its use under the legislation, but no exemption had been made for cannabis when the prosecution was instituted. During the course of the litigation a protocol was adopted which made provision for the minister of health to grant such permission on application by persons seeking to use cannabis for medical purposes. The protocol was, however, unsatisfactory and left the ultimate decision to the discretion of the Minister.
[126] Subsequent to its decision in
Parker’s case, the same three judges who decided that case rejected
a broader challenge to the criminalisation of the possession of
cannabis,
holding that such prohibition was “valid in all respects except that [it
did] not include an exemption for medical
use”.2[6] A religious
exception was not, however, in issue in that case and the judgment does not deal
with that issue.
[127] The provision of medical exemptions from the
prohibition against the possession and use of harmful drugs is necessary for
health
purposes and is sanctioned by the international conventions. Such
exemptions are amenable to control in ways in which a general
exemption for
religious purposes such as that proposed by the appellant would not be. This is
dealt with more fully in paragraph
133 below. Parker’s case is
therefore not authority for the relief that the appellant claims in this
case.
Section 36 analysis
[128] As stated previously, the
approach of the minority of the Court in Smith’s case is more
consistent with the requirements of our Constitution and our jurisprudence on
the limitation of rights, than
the approach of the majority. However, as Sachs
J pointed out in the Christian Education
case,2[7] our Constitution
in dealing with the limitation of rights does not call for the use of different
levels of scrutiny, but “expressly
contemplates the use of a nuanced and
context-sensitive form of balancing” in the section 36 proportionality
analysis.
[129] Nevertheless the Smith case does demonstrate the
difficulty confronting a litigant seeking to be exempted for religious reasons
from the provisions of a
criminal law of general application. There can be
little doubt that even on the strict scrutiny test adopted by the minority in
that case, a prohibition of the use of a drug such as
cannabis, in the way that Rastafari use it, would not have been
permitted.2[8] Cannabis, unlike
peyote, is a drug in which there is a substantial illicit trade which exists
within South Africa and internationally.
Moreover, the use to which cannabis is
put by Rastafari is not simply the sacramental or symbolic consumption of a
small quantity
at a religious ceremony. It is used communally and privately,
during religious ceremonies when two or more Rastafari come together,
and at
other times and places. According to his own evidence, the appellant uses
cannabis regularly at his home and elsewhere.
All that distinguishes his use of
cannabis from the general use that is prohibited, is the purpose for which he
uses the drug, and
the self-discipline that he asserts in not abusing
it.
[130] There is no objective way in which a law enforcement official
could distinguish between the use of cannabis 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 is there any objective way in which a law
enforcement
official could determine whether a person found in possession of
cannabis, who says that it is possessed for religious purposes,
is genuine or
not. Indeed, in the absence of a carefully controlled chain of permitted
supply, it is difficult to imagine how the
island of legitimate acquisition and
use by Rastafari for the purpose of practicing their religion could be
distinguished from the
surrounding ocean of illicit trafficking and
use.
[131] Cannabis is grown in South Africa and according to the
evidence South Africa is one of the major sources from which the world
trade in
cannabis is supplied. South Africa has an international obligation to curtail
that trade and, though its obligation is
subject to its Constitution, the fact
that it has this obligation and the importance of honouring it, cannot be
ignored in the limitations
analysis. Moreover, there is an extensive trade in
cannabis within South Africa itself. According to the statistics produced by
Superintendent Mason, over 80 per cent of all drug convictions are cannabis
related, and over 60 per cent of those deal with its
unlawful possession.
[132] The right to freedom of religion is a right enjoyed by all
persons. The right embraces religions, big and small, new and old.
If an
exemption in general terms for the possession and use of harmful drugs by
persons who do so for religious purposes were to
be permitted, the State’s
ability to enforce its drug legislation would be substantially
impaired.
[133] The appellant, appreciating this difficulty, suggested
that a permit system be introduced allowing bona fide Rastafari to possess
cannabis for religious purposes. In support of this contention he sought an
analogy in the provisions of the legislation permitting
the use of harmful drugs
for medical purposes. The analogy is unsound, however. Permitted use of a
prohibited substance for medical
purposes is dependent upon a written
prescription being issued by a medical practitioner which must limit the use of
the drug to
particular quantities for a limited period of time, and is subject
to ongoing control by the doctor. The drugs have to be approved
by the
Medicines Control Council2[9] and,
if they are, they may be stocked by pharmacists, who in turn have to keep
registers and observe strict controls as to the way
drugs are
used.3[0] A breach of these
requirements could lead to the doctor or pharmacist being struck off the rolls
of their professions. Provision
is also made for regulatory inspections of the
premises of doctors and chemists and of the records kept by
them.3[1] Cannabis has not been
approved as being suitable for medical use and, in fact, there is no medical
exemption that permits it to
be used for such purpose.
[134] There would
be practical difficulties in enforcing a permit system. These are referred to
by Superintendent Mason. They include
the financial 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.
[135] The Rastafari
are not well organised as a religion, either in South Africa or elsewhere. This
is apparent from Professor Yawney’s
affidavit, and also from the
appellant’s own evidence. Professor Yawney says:
“Sociologically speaking, Rastafari comprises of several apparently contradictory social tendencies which co-exist in a state of dynamic tension. Rastafari has not imposed a centralised organisation structure on its adherents. It is basically a social network with different nodal points and organised sectors. While most Rastafari do not belong to formal organisations, many belong to several loosely constituted groups. In fact, throughout the course of Rastafari history, many organisations have waxed and waned in prominence.”
[136] An attempt has been made to
establish formal structures for the religion in South Africa. A Rastafarian
National Council was
established and its constitution was adopted in December
2000 after the preliminary hearing before this Court. It has no stable
history
to draw upon, nor is there any assurance that stability will prevail in relation
to its affairs in the future. In the light
of Professor Yawney’s evidence
there must at least be some doubt on that score.
[137] According to the
appellant most, but not all, Rastafari in South Africa belong to one of four
“Houses”. However,
he himself does not belong to a House, though on
occasions he attends their ceremonies. The two larger Houses have
“priests”or
“elders” but the two smaller Houses do not
have any formal structures. The Houses have apparently adopted constitutions,
but it is not clear when this was done. Bearing in mind the looseness of the
structures and the fact that 10 per cent or more of
the Rastafari in South
Africa do not belong to a House, the administration and enforcement of a permit
system in such circumstances
would clearly present many
problems.
[138] But more importantly, the religious use of cannabis
cannot be equated to medical use. It would expose Rastafari to the same
harm as
others are 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 issued by the state to “bona fide
Rastafari”
would, in the circumstances of the present case, be
inconsistent with the freedom of
religion.3[2] It is the essence
of that freedom that individuals have a choice that does not depend in any way
upon the permission of the executive.
If cannabis can be possessed and used for
religious purposes, that must be so whether the executive consents or not, and
whether
the person concerned is a Rastafari or an adherent of some other
religion. Quite apart from this objection, such a permit system
would not
address the law enforcement problems referred to in para 130 above. 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. There is, of course, the pervading anomaly that
permission for Rastafari to possess cannabis is meaningless unless they
are
allowed to grow it themselves (which presents its own complications) or their
suppliers and the original growers are also brought
within the exemption (this
too presents complications).
[139] The use made of cannabis by Rastafari
cannot in the circumstances be sanctioned without impairing the state’s
ability
to enforce its legislation in the 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
is thus reasonable and justifiable
under our Constitution.
[140] In his
judgment, Ngcobo J concludes that a limited exemption for the non-harmful use
of cannabis could be crafted by the legislature
to accommodate the religious
needs of Rastafari. Because the appellant’s case focussed on the general
use of cannabis in which
smoking has a prominent role, little attention was
given in the evidence to the other uses of cannabis. It was never suggested
that
permitting other uses, but prohibiting smoking, would enable the appellant
to practise his religion. According to Professor Yawney,
the importance of
cannabis to the practice of the religion is that it “encourages
inspiration and insight through the presence
of sudden illumination”. It
is the psycho-active effect of the drug that does this. Whilst smoking is the
most potent form
of use, it appears that eating and drinking have similar
effects. The appellant stresses in his affidavit that children are not
entitled
to smoke cannabis, but that
“A mature youth could be introduced to the holy herb in a non-invasive form such as tea [which does not have any psycho-active component in small quantities] or in food in the most minute of quantities on special occasions and under parental supervision.”
Whether the inhalation of
the smoke from the bur
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