IN THE HIGH COURT OF SOUTH AFRICA
 

(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

 

CASE 7236/97

 

In the application of:

 

GARRETH ANVER PRINCE

 

Applicant

 

and

 

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


APPLICANT'S SUBMISSIONS


V C SALDANHA
Applicant's Attorney
Legal Resources Centre
54 Shortmarket Street
Cape Town

TABLE OF CONTENTS

 

INTRODUCTION

 

3

 

THE FACTS
          The applicant's qualifications
          Why the Council objected
          The applicant's explanation

 

5
5
7
9

 

THE DRUGS ACT

 

12

 

FREEDOM OF RELIGION
          The constitutional provisions
          The content of the right
          Violation by purpose or effect
          The Peyote decision
          Conclusions

 

14
14
14
21
25
34

 

THE PROHIBITION OF DISCRIMINATION

 

36

 

THE FREEDOM TO CHOOSE ONE'S PROFESSION

 

42

 

APPLICANT'S POSSESSION AND USE IS EXEMPTED

 

44

 

ALTERNATIVELY, THE PROHIBITION IS UNCONSTITUTIONAL

 

47

 

ALTERNATIVELY, THE APPLICANT IS FIT AND PROPER

 

51

 

PRAYERS

 

54

 

INTRODUCTION
 

1

 

The applicant is in the process of qualifying for admission as an attorney.  The only outstanding requirement for his qualification, is a period of community service in terms of section 2A(a)(ii) of the Attorneys Act 53 of 1979.  The secretary of the Law Society however declined to register his contract of community service in terms of section 5(2) of the Attorneys Act.   She declined to do so because the Council of the Law Society objected to its registration.  It concluded that he was not a fit and proper person because he had two previous convictions for possession of cannabis and made it clear that he intended to continue to use cannabis in future.  He has used cannabis in the past and intends to do so in future only because he is a committed Rastafarian and cannabis plays a central role in his religious worship.

 

2

 

We will submit that the Law Society erred for the following reasons:

 

2.1

 

The applicant's possession and use of cannabis for purposes of religious worship, is constitutionally protected under,

 

-

 

the right to freedom of religion in terms of sections 15(l) and 31(1)(a);

 

-

 

the prohibition of discrimination in terms of section 9(3) and

 

-

 

the right freely to choose one's profession in terms of section 22.

 

2.2

 

Because the applicant's possession and use of cannabis for purposes of religious worship is constitutionally protected, it is also permitted under section 4(vi) of the Drugs and Drug Trafficking Act 140 of 1992.

 

2.3

 

Alternatively, if the applicant's possession and use of cannabis for purposes of religious worship is prohibited by section 4(b) of the Drugs Act, the latter provision is unconstitutional and invalid insofar as it fails to exempt the possession and use of cannabis for purposes of religious worship protected under the constitution.

 

2.4

 

Alternatively, even if the possession and use of cannabis for purposes of religious worship is prohibited by section 4(b) of the Drug Act and even if the prohibition is valid, the applicant's possession and use of cannabis for purposes of religious worship does not render him unfit to be an attorney.

 

THE FACTS

 

The applicant's qualifications

 

3

 

The applicant completed his LL.B degree in 19931 and so became "entitled to be admitted as an advocate" within the meaning of section 2(1)(b) of the Attorneys Act.

 

4

 

In 1994 he successfully completed the Law Society's six months' training course in terms of section 2A(a)(i) of the Attorneys Act.2

 

5

 

It means that the only remaining requirement for his admission as an attorney, is that he performs community service for a period of one year in terms of section 2A(a)(ii) of the Attorneys Act.  On 9 January 1997 he entered into a contract of community service.3  He lodged an application with the Law Society for registration of his contract on 15 February 1997.4  He disclosed in his application that he had two previous convictions for possession of cannabis and lodged an affidavit explaining the nature and circumstances of those convictions.5

 

6

 

On 24 February 1997 the Council of the Law Society resolved to object to the registration of his contract because it was not persuaded that he was a fit and proper person.6  In terms of section 5(2) the secretary of the Law Society could not register the applicant's contract in the light of the Council's objection.

 

7

 

The applicant was informed of the Council's decision by a letter dated 25 February 1997.7

 

8

 

On 27 February 1997 the applicant and his principal met with two representatives of the Law Society.   The purpose of the meeting was merely for the Law Society's views to be explained to the applicant.8

 

9

 

On 14 and 25 March 1997 the applicant and the Law Society exchanged further correspondence.9

 

Why the Council objected

 

10

 

The Law Society has made it clear that the Council's objection to the registration of the applicant's contract, is founded purely on his stated intention to continue to use cannabis for purposes of religious worship and their understanding that it would be a criminal offence for him to do so.  They do not suggest that the two previous convictions or the mere fact that the applicant intends to continue using cannabis, in itself renders him unfit to be an attorney.  It is only because he intends to continue doing something which, on the Law Society's understanding, contravenes the law, that they regard him unfit to be an attorney.

 

11

 

The Law Society said in its letter of 25 March 1997, that it objected to the registration of the applicant's contract because "a person who states his intention to break the law and actually continues to do so, cannot be regarded as a fit and proper person to have his contract of service registered".10

 

12

 

This attitude is repeatedly reiterated in their answering affidavit:

 

12.1

 

They say that the question whether the use and possession of cannabis should be criminalised, "is a matter to be decided by parliament and, if needs be, the Constitutional Court".11  They add that, "unless and until parliament repeals the criminal prohibition, or the Constitutional Court declares it to be unconstitutional and invalid, (the Law Society) considers itself to be duty-bound to adopt the attitude that an applicant who has stated and repeated in unequivocal terms that he or she intends contravening the provisions of the Drugs and Drug Trafficking Act relating to the possession and use of cannabis, does not meet the "fit and proper," requirement imposed by section 4A(b)(i) of the Attorneys Act".12  The implication is clear.  It is only because the possession and use of cannabis is a criminal offence, that someone who intends to continue using cannabis, is regarded as unfift to be an attorney.  If the possession and use of cannabis for purposes of religious worship were not a criminal offence, the Law Society would have no objection.

 

12.2

 

Later in their answer, they repeat that they regard "the applicant's stated intention to continue using cannabis in spite of the criminal prohibition, as decisive".13

 

13

 

It is in other words clear that, if indeed the applicant's possession and use of cannabis for purposes of religious worship, is constitutionally protected and consequently lawful, the Law Society would have no objection to the registration of the applicant's contract.

 

The applicant's explanation

 

14

 

The applicant's explanation for his possession and use of cannabis, is undisputed.14

 

15

 

He is a committed Rastafarian.  He underwent "a theosophical and philosophical quest" in 1988 and became convinced that the Rastafari religion "provided an answer to my spiritual and religious needs".   He adopted the vow of the Nazarene in January 1989.  As a symbol of his conversion, he wears his hair in dreadlocks.  He observes the dietary commands of his religion not to eat any processed foods or any animal meat.  He lives on a diet of fresh fruit, vegetables, milk, water and dairy products.  He does not use alcohol and does not smoke cigarettes because those substances are proscribed by his religion.15

 

16

 

He performs the rituals of the Rastafarian religion and he participates in its religious ceremonies associated with births, marriages and religious worship.  He uses cannabis as part of his religious worship in accordance with ordinary Rastafari religious practice.  He does not indulge in any casual non-religious use of cannabis.16

 

17

 

The Rastafarian religion is an ancient religion in the Judaeo-Christian tradition.17  The adherents of the Rastafari religion regard cannabis as a holy herb.18  It forms an integral part of their religious worship and is used for spiritual, medicinal and culinary purposes.  It is regarded as "the tree of life".  It is smoked as part of the Rastafari ritual in religious ceremonies.  They believe "that the body is a temple and is cleansed from within by the smoke of the cannabis which is also regarded 'as a peace offeting to appease the wrath of God on sinful people'".  Cannabis is also used as a form of incense burnt as part of their ritual similar to the use of incense in the rituals of other religions.19

 

18

 

The applicant has made it clear from the outset that he intends to continue using cannabis for purposes of his Rastafari religious worship.  He said in the affidavit lodged with the application for registration of his contract, that "whatever God has blessed no one can curse and no matter what human kind may say or do, you cannot keep a good plant down".20

 

THE DRUGS ACT

 

19

 

Cannabis is classified in Part III of Schedule 2 of the Drugs Act, as an "undesirable dependence-producing substance".

 

20

 

In terms of sections 4(b), 13(d) and 17(d) of the Drugs Act, the possession and use of such a substance is a criminal offence punishable by such fine as the court may deem fit to impose or by imprisonment for a period not exceeding fifteen years, or both.

 

21

 

The criminal prohibition is however subject to the exemptions listed in section 4(i) to (vi).  The categories of people exempted from the prohibition may be summarised as follows:

 

21.1

 

Any patient who acquired the substance from an authorised practitioner for medicinal purposes.21

 

21.2

 

Any person who acquired the substance from an authorised practitioner to administer it to a patient under the care of a medical practitioner.22

 

21.3

 

The Director-General of Welfare.23

 

21.4

 

Any person who acquired the substance under the Medicines and Related Substances Control Act 101 of 1965.24

 

21.5

 

Any employee of a person exempted in the preceding category, who acquired the substance in the course of his employment.25

 

21.6

 

Any person who "has otherwise come into possession of any such substance in a lawful manner".26

 

22

 

The latter category is important for purposes of this application.  It is unspecified and open-ended.  It exempts anybody who has come into possession of the substance in any other lawful manner.  The exemption clearly extends to everybody whose possession is permitted under any other common law or statutory authority and, a fortiori, to those whose possession is protected by the constitution.

 

FREEDOM OF RELIGION

 

The constitutional provisions

 

23

 

In terms of section 15(1) everyone has the right to "freedom of conscience, religion, thought, belief and opinion".

 

24

 

In terms of section 31(1)(a), people belonging to "a ... religious ... community, may not be denied the right, with other members of that community, to ... practise their religion ...".

 

The content of the right

 

25

 

In R v Big M Drug Mart27, the leading judgment of the Canadian Supreme Court on the right to freedom of religion, Dickson CJ described the right as follows:

 

"A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct.  A free society is one which aims at equality with respect to the enjoyment of fundamental freedoms and I say this without any reliance upon s15 of the Charter.  Freedom must surely be founded in respect for the inherent dignity and the inviolable rights of the human person.  The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest belief by worship and practice or by teaching and dissemination.  But the concept means more than that.

 

Freedom can primarily be characterised by the absence of coercion or constraint.  If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free.  One of the major purposes of the Charter is to protect, within reason, from compulsion or restraint.  Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others.  Freedom in a broad sense embraces the absence of coercion and constraint, and the right to manifest beliefs and practices.  Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.

 

What may appear good and true to a majoritarian religious group, or the state acting at their behest, may not, for religious reasons, be imposed upon citizens who take a contrary view.   The Charter safeguards religious minorities from the threat of 'the tyranny of the majority'."28

 

26

 

In Lawrence v S,29 Chaskalson P (with whom Langa J, Ackermann J and Kriegler J agreed) referred to Dickson CJ's description of the essence of the concept of freedom of religion and said that he could not "offer a better definition than this, of the main attributes of freedom of religion".30

 

27

 

The right to freedom of religion in other words includes "the right to manifest religious belief by worship and practice".  The right to do so is not only one of the main attributes of the right to freedom of religion entrenched in section 15(1), but is itself expressly entrenched in section 31(1)(a) of our constitution.

 

28

 

It is indeed universally accepted that the right to freedom of religion incorporates the right to manifest one's religious beliefs by worship and practice:

 

28.1

 

That is clearly so under international law.  All the leading international human rights instruments recognise the right to freedom of religion and spell out that it includes the right to worship and practice.  For instance:

 

 

Article 18 of the Universal Declaration of Human Rights provides that freedom of religion includes the right 'either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance'.

 

 

Article 18(1) of the International Covenant on Civil and Political Rights provides that the right to freedom of religion includes the right, "either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching".

 

 

Article 9(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms provides that freedom of religion includes the right "either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance".  In Kokkinakis v Greece31, the applicant was a Jehovah's witness who was invited into an Orthodox Christian's home where he entered into a discussion with her.  He was subsequently arrested, convicted and fined for proselytism prohibited under Greek law.  The European Court of Human Rights held that his arrest, conviction and sentence violated his right to manifest his religion because "bearing witness in words and deeds is bound up with the existence of religious convictions".32

 

 

Article 8 of the African Charter on Human and Peoples' Rights also expressly entrenches the right to "the profession and free practice of religion and goes on to provide that, subject to law and order, no one may be submitted to measures restricting the exercise of these freedoms".

 

28.2

 

In Ratilal Panchand Gandhi v State of Bombay,33 the Supreme Court of India held that religious practices or performances of acts in pursuance of religious belief, are as much part of religion as faith or belief in particular doctrines.

 

28.3

 

We have already mentioned that the Canadian Supreme Court held in Big M Drug Mart that the right to manifest one's belief by worship and practice or by teaching and dissemination, was of the essence of the concept of freedom of religion.  It recently applied this approach in Ross v New Brunswick School District No 1534.  The appellant was a school teacher who publicly disseminated the opinion that Christian civilisation was being destroyed by an international Jewish conspiracy.  He was removed from his teaching position to a non-teaching position and put on notice that he would be dismissed from the latter position if he resumed his anti-semitic activity.  The Supreme Court unanimously held that his activities were protected by the right to freedom of religion.  It went on to hold that his removal to a non-teaching position was a justified limitation of this right but that the threat of dismissal from the latter position if he should resume his anti-semitic activities, was unconstitutional.

 

28.4

 

Article 4(1) of the German Basic Law protects freedom of religion and Article 4(2) guarantees "the undisturbed practice of religion".   In the Rumpelkammer case,35 a Catholic youth organisation had urged parishioners from the pulpit to contribute rags, old clothes and used paper, to raise funds for the relief of hunger in underdeveloped nations.  Commercial rag dealers complained that their activity amounted to unfair competition because of their moral influence over parishioners.  The German Constitutional Court however held that their drive to collect rags, old clothes and used paper for charitable purposes, was an activity which formed part of the practice of religion protected under article 4(2) of the Basic Law.

 

Violation by purpose or effect

 

29

 

It is clear that under our law, like that of Canada but unlike that of the United States, a law offends the constitution if either its purpose or its effect, is to invade a constitutional right36.

 

30

 

In R v Big M Drug Mart,37 Dickson CJ formulated this approach as follows:

 

"In my view, both purpose and effect are relevant in determining constitutionality, either an unconstitutional purpose or an unconstitutional effect can invalidate legislation.   All legislation is animated by an object the legislature intends to achieve.   This object is realised through the impact produced by the operation and application of the legislation.  Purpose and effect respectively, in a sense of the legislation's object and its ultimate impact, are cleariy linked, if not indivisible.   Intended and actual effects have often been looked to for guidance in assessing the legislation's object and thus, its validity."38

 

"Thus, if a law with a valid purpose interferes by its impact, with rights or freedoms, a litigant could still argue the effects of the legislation as a means to defeat its applicability and possibly its valdity.  In short, the effects test will only be necessary to defeat legislation with a valid purpose; effects can never be relied upon to save legislation with an invalid purpose."39

 

31

 

Our Constitutional Court followed this approach in President of the RSA v Hugo.40  This is clear from the following statement of Goldstone J speaking on behalf of the majority of the court:

 

"According to the affidavits filed, the President intended by the special remission of the prison sentences of mothers to further the best interests of children.  There is no doubt of his good faith.  However, the fact that the President, in good faith, did not intend to discriminate unfairly and had in mind the benefit of children, is not sufficient, to establish that the impact of the discrimination upon fathers was not unfair."41

 

32

 

The Constitutional Court again adopted the same approach in Harksen v Lane NO.42  Goldstone J again speaking on behalf of the majority, said the following in this regard:

 

"In the final analysis, it is the impact of the discrimination on the complainant that is the determining factor regarding the unfairness of the discrimination."43

 

33

 

Legislation which is neutral on its face and general in its scope, may accordingly still violate freedom of religion and the concomitant right to religious worship, if its impact on all or some religious groups, is to restrict them in the exercise of those rights.  A general prohibition of the possession and use of alcohol, would for instance, violate the right of Christians to use wine in their religious practice of holy communion.  A general prohibition of the possession and use of cannabis, would similarly violate the right of Rastafarians to use it in the performance of their religious worship.

 

34

 

Freedom of religion and the right to religious worship accordingly sometimes require that exceptions be made to otherwise general laws in order to accommodate the convictions and practices of religious groups.  Currie, The Constitution of the Federal Republic of Germany,44 makes the point that it is not always permissible to subject religiously motivated conduct to general official sanctions for similar acts.  He refers to the following dictum from the judgment of the German Constitutional Court in the Mephisto decision:

 

"In the light of the duty of all public authorities to afford sincere religious convictions the greatest respect ..., the criminal law must give way whenever the concrete conflict between a legal duty recognised by prevailing mores and a command of faith places the actor in such spiritual distress that criminal punishment ... would amount to an excessive reaction on the part of society and thus an infringement of his dignity as a human being."45

 

Currie adds that this paragraph may fall short of a declaration that criminal laws must always take second place to religious convictions, but it unmistakably affirms that in at least some cases religious liberty requires exceptions from generally applicable laws.

 

35

 

It is clear that under our constitution the position is substantially the same:

 

35.1

 

A law may be general in its application and benign or neutral on its face and yet violate the right to freedom of religious worship, if its effect is to restrict all or some religious groups in the exercise of their freedom of worship according to the tenets of their faith.

 

35.2

 

It does not mean that everyone has an absolute right to do whatever his or her religion might dictate.   Restrictions of their freedom are permissible provided that they accord with the requirements of limitation under the general limitation provision in section 36 of the constitution.

 

The Peyote decision

 

36

 

In Employment Division v Smith [1990]46, the US Supreme Court held by a majority that the Oregon State prohibition of the possession and use of the hallucinogenic drug, Peyote, did not violate the free exercise of religion guaranteed under the First Amendment to the US Constitution, despite the fact that it precluded the use of the drug by the Native American Church for sacramental purposes.  The opinions of the nine justices of the court divided into three distinct groups:

 

36.1

 

The majority opinion delivered by Scalia J, with whom Rehnquist CJ, White J, Stevens J and Kennedy J agreed, held that the prohibition did not engage the guarantee of freedom of religious observance at all.  The ratio of their conclusion was that a law violated the guarantee of freedom of religious observance, only if that was its purpose.  A law with a benign or neutral purpose on the other hand, did not violate the guarantee of freedom of religious observance, even if its effect was to restrict all or some of those subject to the law in the free exercise of their freedom of religious observance.   Scalia J put it thus:

 

"Respondents in the present case, however, seek to carry the meaning of 'prohibiting the free exercise (of refigion)' one large step further.  They contend that religious motivation for using Peyote places them 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.   They assert, in other words, that 'prohibiting the free exercise (of refigion)', includes requiring any individual to observe a generally applicable law that requires (or forbids) the performance of an act that his religious belief forbids (or requires).   As a textual matter, we do not think the words must be given that meaning.  It is no more necessary to regard the collection of a general tax, for example, as 'prohibiting the free exercise (of refigion)' by those citizens who believe support of organised government to be sinful, than it is to regard the same tax as 'abridging the freedom ... of the press' of those publishing companies that must pay the tax as a condition of staying in business.  It is a permissible reading of the text, in the one case as in the other, to say that if prohibiting the exercise of religion (or burdening the activity of printing) is not the object of the tax but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended ....

 

Our decisions reveal that the latter reading is the correct one.  We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate."47

 

36.2

 

O'Connor J with whom Brennan J, Marshall J and Blackmun J agreed, held that an enquiry of this kind had to be undertaken in two steps:

 

36.2.1

 

The first is to enquire whether the law under attack imposes a burden on the freedom of religious observance.  The majority is wrong in holding that a law does so only if that is its purpose.  A law of general application with a benign or neutral purpose, may nevertheless impose a burden on the freedom of religious observance, if its effect is to restrict all or some of those subject to its terms in their exercise of that freedom.  O'Connor J put it thus:

 

"But a law that prohibits certain conduct - conduct that happens to be an act of worship for someone - manifestly does prohibit that person's free exercise of his religion.  A person who is barred from engaging in religiously motivated conduct is barred from freely exercising his religion.  Moreover, that person is barred from freely exercising his religion regardless of whether the law prohibits the conduct only when engaged in for religious reasons, only by members of that religion, or by all purposes.  It is difficult to deny that a law that prohibits religiously motivated conduct, even if the law is generally applicable, does not at least implicate First Amendment concerns.

 

The court responds that generally applicable laws are "one large step" removed from laws aimed at specffi'c religious practices ....  The First Amendment, however, does not distinguish between laws that are generally applicable and laws that target particular religious practices.  Indeed, few states would be so naive as to enact a law directly prohibiting or burdening a religious practice as such.  Our free exercise cases have all concemed generally applicable laws that had the effect of significantly burdening a religious practice.  If the First Amendment is to have any vitality, it ought not to be construed to cover only the extreme and hypothetical situation in which a state directly targets a religious practice."48

 

36.2.2

 

To say that a person's right to free exercise of religious worship has been burdened, however does not mean that he or she has an absolute right to engage in the prohibited conduct.  A restriction imposed on the freedom of religious worship will be upheld, if it is shown to serve "a compelling state interest" and does so "by means narrowly tailored to achieve that interest".49

 

36.3

 

The latter group were agreed that the prohibition under consideration in this case, imposed a restriction on the members of the Native American Church in the exercise of their freedom of religious observance.  They differed only on the second step of the enquiry.  O'Connor J held that, "although the question is close"50, the prohibition was justified because it served a compelling state interest and was narrowly tailored to achieve that end.51   Blackmun J, Brennan J and Marshall J on the other hand, held that the prohibition was not justified and was consequently unconstitutional.52

 

37

 

It is clear that the approach of the majority in the Peyote case, is fundamentally at variance with our law whilst the minority approach is much closer to it:

 

37.1

 

The essence of the difference between the majority and the minority, is that the majority would have it that a law violates freedom of religious observance only if that is its purpose and does not do so if it has a benign or neutral purpose even if its effect is to restrict all or some of those subject to the law in the exercise of their freedom of religious observance.  According to the minority on the other hand, a law violates freedom of religious observance, if that is its purpose or its effect.  We have already demonstrated that the latter approach accords with our law.

 

37.2

 

The approach of the majority is not confined to violations of freedom of religious observance but seems to accord with a more general approach of the US Supreme Court that a law violates the constitution only if that is its purpose and not when it is merely its effect.  The Supreme Court expressly held that to be so in Washington v Davis (1976)53 in the application of the equal protection clause.  White J who delivered the opinion of the court, said that the Supreme Court "has not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminately purpose, is unconstitutional solely because it has a racially disproportionate impact".

 

The Canadian Supreme Court recently recognised in Eldridge v British Columbia (Attorney General)54 that in this regard, the Canadian approach differs from that of the US Supreme Court.  La Forest J who delivered the judgment of the court said the following in this regard:

 

"A legal distinction need not be motivated by a desire to disadvantage an individual or group in order to violate s15(1).  It is sufficient if the effect of the legislation is to deny someone the equal protection or benefit of the law.  As McIntyre J stated in Andrews... 'To approach the ideal of full equality before and under the law ... the main consideration must be the impact of the law on the individual or the group concerned.  In this the court has staked out a different path than the United States Supreme Court, which requires a discriminatory intent in order to ground an equal protection claim under the Fourteenth Amendment of the Constitution."55

 

We have already demonstrated that our approach coincides with that of the Canadian Supreme Court and also differs from that of the US Supreme Court.

 

37.3

 

Both the majority and the minority in the Peyote case, recognised that the right to freedom of religious observance, is not absolute.  The essence of the difference between them, lay in the way in which the right is to be confined within reasonable limits.  The majority did so by giving a restrictive interpretation of the right itself.  The minority on the other hand, gave full effect to the right itself, but held that it was subject to any limitation which could be justified on the basis that it served a compelling state interest and was narrowly tailored to achieve that interest.   The latter two-step approach clearly accords with our law which gives full effect to the fundamental rights entrenched in the constitution but renders them subject to justifiable limitation in terms of section 36.

 

38

 

We accordingly submit that the approach of the majority in the Peyote case, is at variance with the principles of our constitutional law.  Our approach is similar to that of the minority except that we apply a different test for justification, namely the one prescribed by section 36.

 

Conclusions

 

39

 

The applicant's right to use cannabis for purposes of Rastafari religious observance, is protected under the right to freedom of religion and the concomitant right to freedom of religious observance entrenched in sections 15(1) and 31(1)(a) of the constitution.

 

40

 

Any prohibition of the possession and use of cannabis for that purpose, constitutes a violation of sections 15(1) and 31(1)(a).  Such a prohibition is permissible only if justified in terms of the general limitation provision in section 36.   We will at an appropriate stage consider whether the prohibition in section 4(b) of the Drugs Act can be.justified in terms of section 36.

 

THE PROHIBITION OF DISCRIMINATION

 

41

 

In terms of section 9(3) of the constitution, the state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including "religion".

 

42

 

The section prohibits both direct and indirect discrimination.  In Egan v Canada56 Cory J who gave the judgment of the court, described the difference as follows:

 

"Direct discrimination involves a law, rule or practice which on its face discriminates on a prohibited ground.  Adverse effect discrimination occurs when a law, rule or practice is facially neutral but has a disproportionate impact on a group because of a particular characteristic of that group."57

 

43

 

The express prohibition of direct and indirect discrimination accordingly makes it clear that the prohibition is not limited to laws which intend to discriminate, but also extends to laws with a benign or neutral purpose but which have a discriminatory impact on all or some of those to whom they apply.  We have already demonstrated that this approach accords with the general principles of our constitutional law.

 

44

 

In President of the RSA v Hugos58, Goldstone J who delivered the judgment of the court, said the following about the purpose of the prohibition of unfair discrimination:

 

"At the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups.  The achievement of such a society in the context of our deeply inegalitarian past will not be easy, but that that is the goal of the constitution and should not be forgotten or overlooked."59

 

45

 

Insofar as section 4(b) of the Drugs Act prohibits any possession or use of cannabis, it discriminates against adherents of the Rastafari religion because its effect is to restrict them in their religious observance whilst not imposing the same burden on the adherents of other religions who do not make use of cannabis for purposes of religious observance.  The impact of the prohibition is in other words to discriminate against Rastafarians on the ground of their religion.

 

46

 

Because the prohibition differentiates between Rastafarians and non-Rastafarians on the ground of religion, which is a prohibited ground of discrimination specified in section 9(3), the differentiation is deemed in terms of section 9(5), to constitute unfair discrimination.60

 

47

 

The presumption of unfair discrimination may be rebutted.  In Harksen v Lane61, Goldstone J who delivered the judgment of the court, held62 that the factors which impacted on the fairness or otherwise of the discrimination, would include the following:

 

47.1

 

The position of the complainants in society and whether they have suffered in the past from patterns of disadvantage.

 

The complainants are the adherents of the Rastafari religion.  As a tiny minority in a society organised and regulated on the basis of Christian-European values, they have in the past been marginalised and have suffered from patterns of disadvantage.

 

47.2

 

Whether the discrimination in the case under consideration is on a specified ground or not.

 

In this case it is.

 

47.3

 

The nature of the provision or power and the purpose sought to be achieved by it.

 

In this case, the prohibition is not in the first instance directed at discrimination against Rastafarians but at the prohibition of dependence-producing substances.  That is undoubtedly a worthy object.

 

47.4

 

The extent to which the discrimination has affected the rights or interests of complainants and whether it has led to an impairment of their fundamental human dignity or constitutes an impairment of a comparably serious nature.

 

The prohibition seriously affects Rastafarians in that it compels them to choose between their deeply felt religious convictions on the one hand and obedience to the law on the other.   A Rastafarian either has to betray his deeply felt religious convictions or face serious criminal sanction.  Adherents of other faiths do not suffer the same dilemma.   They may freely engage in religious observance even if it involves the use of other dependence-producing substances like alcohol.  This discrimination against Rastafarians manifestly impairs their human dignity.

 

47.5

 

Any other relevant factors.

 

Another relevant factor in this case is that the integrity of purpose of the Drugs Act would not be impaired by a very limited exemption which applies only to Rastafarians and only to their bona ride use of cannabis for purposes of religious observance.  Given that the legislation may achieve its purpose subject to accommodation of the deeply felt convictions of Rastafarians, its failure to make such an accommodation is unfair.

 

48

 

We submit that the presumption of unfair discrimination has clearly not been rebuffed.  Although the prohibftion seeks to achieve a laudable purpose, it can do so subject to accommodation of deeply felt Rastafarian religious conviction.  Its failure to do so imposes a heavy burden on them and impairs their human dignity.  The unfairness is exacerbated by the fact that. they are a small, marginalised and vulnerable community within our society.   The discrimination against them is consequently unfair.

 

49

 

It follows that, insofar as section 4(b) of the Drugs Act prohibits the use of cannabis even for bona fide religious observance, it constitutes a violation of the prohibition of discrimination in section 9(3) of the constitution.  The violation might of course still be justified in terms of section 36.  We will at an appropriate stage deal with the issue of justification.

 

THE FREEDOM TO CHOOSE ONE'S PROFESSION

 

50

 

In terms of section 22 of the constitution, every citizen has the right freely to choose his or her profession.  The practice of a profession may however be regulated by law.

 

51

 

The applicant is a South African citizen and accordingly enjoys the benefit of this right.63

 

52

 

The combined effect of,

 

-

 

the criminalisation of the possession and use of cannabis in terms of section 4(b) of the Drugs Act to the extent that it does so even when the cannabis is used for purposes of religious observance and

 

-

 

the approach of the Law Society that anybody who intends to continue to use cannabis in contravention of the criminal prohibition, is unfit to be an attorney, even if he intends to do so only for purposes of religious observance,

 

is to exclude committed Rastafarians from the attorneys' profession.  It impairs their right freely to choose their profession because it requires of them to forsake their religious convictions to do so.

 

53

 

The combined effect of section 4(b) of the Drugs Act and the attitude of the Law Society, accordingly also violates the applicant's right in terms of section 22, freely to choose his profession.  The violation may also be justified in terms of section 36 of the constitution.  We will at an appropriate stage deal with the issue of justification.

 

THE APPLICANT'S POSSESSION AND USE IS EXEMPTED

 

54

 

In terms of section 4(vi) of the Drugs Act, the prohibition in section 4(b) does not apply to anyone who has "come into possession of any such substance in a lawful manner".

 

55

 

The exemption is unspecified and open-ended.  Any acquisition of a prohibited substance which is permitted at common law or under other legislation or which is protected under the constitution, qualifies for exemption.

 

56

 

We have already submitted that the bona fide use of cannabis by adherents of the Rastafari religion for purposes of religious observance, is protected under,

 

-

 

the right to freedom of religious observance in terms of sections 15(1) and 31(1)(a) of the constitution;

 

-

 

the prohibition of unfair discrimination in section 9(3) of the constitution and

 

-

 

the right freely to choose one's profession in terms of section 22 of the constitution.

 

Such possession and use is accordingly exempted under section 4(vi) of the Drugs Act.

 

57

 

This interpretation of the exemption is in any event to be preferred because a narrower interpretation would bring the prohibition into conflict with the constitution.  Such a conflict has to be avoided whenever the language of the legislation permits one to do so.  Section 39(2) of the constitution provides that, when the court interprets any legislation, it must do so in a way which promotes the spirit, purport and objects of the bill of rights.  It follows that, where the language of the legislation permits it to do so, the court will prefer an interpretation consistent with the bill of rights to one which brings the legislation in conflict with it.  The constitutional court adopted this approach in Bernstein v Bester,64 Nei v Le Roux65 and Harksen v Lane.66  If the same approach is applied to the present case, the exemption under section 4(vi) has to be interpreted in a way which permits the bona fide possession and use of cannabis for purposes of religious observance because possession and use for that purpose enjoys constitutional protection.  Any other interpretation would bring section 4(b) in conflict with the constitution.

 

58

 

The applicant's possession and use of cannabis for purposes of bona fide religious worship, is accordingly lawful.  On the Law Society's own approach, it does not render him unfit to be an attorney.

 

ALTERNATIVELY, THE PROHIBITION IS UNCONSTITUTIONAL

 

59

 

If the exemption under section 4(vi) does not permit the applicant's bona fide use of cannabis for purposes of religious observance, then the prohibition under section 4(b) violates,

 

the right to freedom of religious observance under sections 15(1) and 31(1)(a) of the constitution;

 

the prohibition of unfair discrimination in section 9(3) of the constitution and

 

the right freely to choose one's profession in section 22 of the constitution.

 

60

 

The prohibition would then be invalid unless justified in terms of section 36(1) of the constitution.  The respondents bear the onus of proving justification.  They have, however not pleaded justification.  It is not open to them to contend that the prohibition is justified.

 

61

 

The prohibition is in any event clearly not justified.  In terms of section 36(1), a limitation of a right entrenched in the bill of rights, is permissible only if it is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors including the following:

 

61.1

 

The nature of the right.
The rights violated by the prohibition, and particularly the right to freedom of religious observance and the prohibition of unfair discrimination, are rights which lie at the heart of the values underlying the constitution.  Any violation of those rights, is closely scrutinised and not easily justified.

 

61.2

 

The importance of the purposes of the limitation.
We accept that the prohibition seeks to prohibit the possessior and use of dependence-producing substances, which is an important objective.

 

61.3

 

The nature and extent of the limitation.
The prohibition constitutes a serious limitation insofar as it criminalises a central feature of Rastafarian religious observance.

 

61.4

 

The relation between the limitation and its purpose.
We accept that the prohibition advances the purpose sought to be achieved.

 

61.5

 

Less restrictive means to achieve the purpose.
Any attempt at justification clearly falters on this ground.  The constitutional violation can be avoided by a very limited exemption permitting adherents of the Rastafari religion to possess and use cannabis for purposes of bona fide religious observance.  The exemption may further be subject to regulation to prevent abuse.   There is no reason to believe that the purpose sought to be achieved by the prohibition as a whole, will significantly be undermined by such a limited exemption which applies only to,

 

-

 

the possession and use of cannabis,

 

-

 

by adherents of the Rastafari religion,

 

-

 

for purposes of bona fide religious observance.

 

There is accordingly no justification for the legislature's failure to provide for such limited accommodation of the constitutional rights of adherence of the Rastafari religion.

 

62

 

We submit that the prohibition is unconstitutional and invalid insofar as it applies to the possession and use of cannabis by adherents of the Rastafari religion for purposes of bona fide religious observance.  The applicant's possession and use of cannabis for that purpose, is consequently lawful.  It follows that, on the Law Society's own approach, it does not render him unfit to be an attorney.

 

ALTERNATIVELY, THE APPLICANT IS FIT AND PROPER

 

63

 

We submit that the applicant's possession and use of cannabis does not render him unfit to be an attorney even if it should be held,

 

that it is prohibited in terms of section 4(b) of the Drugs Act and

 

that the prohibition is valid.

 

64

 

We make this submission on the following grounds:

 

64.1

 

The Law Society does not suggest that the applicant's possession and use of cannabis purely for purposes of bona fide religious observance, is in itself morally reprehensible.   Its objection is based purely on the applicant's failure to obey the law.

 

64.2

 

The applicant's dilemma is that he is forced to choose between his deeply felt religious convictions on the one hand, and obedience to the law on the other.  One might differ from him on the choice he has made, but it does not reflect on his integrity as a human being.  It is on the contrary a manifestation of integrity of the highest order.   We have in recent times become acutely aware of the fact that those who transgress the law in pursuit of matters of principle, do not necessarily render themselves unfit to hold public office.  Our courts have, in the past, recognised that those who do so are also not necessarily rendered unfit to be attorneys or advocates.  The case law on this issue is conveniently surveyed in Natal Law Society v N.67

 

64.3

 

The applicant's possession and use of cannabis is quite unrelated to his activities as an aspirant attorney.  It is confined to his personal religious observance which is an intensely private matter.

 

64.4

 

The applicant has in his application for registration of his contract of community service, been admirably frank, not only about his previous convictions, but also about his intention to continue using cannabis for purposes of his religious observance.  Any person of less than impeccable integrity, would undoubtedly have succumbed to the temptation not to make this disclosure at the risk of exclusion from one's chosen profession.  The applicant's frankness is a further manifestation of his integrity.

 

65

 

Section 4A(b)(i) of the Attorneys Act requires an applicant for registration of a contract of community service to submit "proof to the satisfaction of the society that he is a fit and proper person".  Section 5(2) then precludes registration of his contract if the Council of the Law Society has any objection its registration.  These provisions do not leave the determination of the fitness of an applicant to the discretion of the Council of the Law Society.  It is essentially a question of fact about which the court has the final say.  This was the interpretation of a similar provision adopted by the Appellate Division in Kudo v Cape Law Society.68  The ratio of its interpretation is equally applicable to sections 4A(b)(i) and 5(2) of the Attorneys Act.

 

66

 

The issue is accordingly whether, as a matter of fact, the applicant's possession and use of cannabis for purposes of religious observance, renders him unfit to be an attorney.  We submit that it does not.

 

PRAYERS

 

67

 

The applicant asks for the following relief:

 

67.1

 

An order reviewing and setting aside the decision of the second respondent to raise an objection to the registration of the applicant's contract of community service in terms of section 5(2) of the Attorneys Act 53 of 1979.

 

67.2

 

An order directing the third respondent to register the applicant's contract of community service with effect from 15 February 1997.69

 

68

 

We submit that it would not be appropriate to make any order for costs in this matter whatever its outcome.  If this court should however hold that an order for costs is appropriate, then the applicant asks that the second respondent Law Society be ordered to pay his costs including the costs of two counsel.

 

WIM TRENGOVE SC

 

D JACOBS

 

PLAINTIFF'S COUNSEL

 

Chambers
Johannesburg
November 6, 1997

1 Founding affidavit 7:8

2 Founding affidavit 8:9

3 Founding affidavit 9:12; contract 21-23

4 Founding affidavit 9:13; application 24-31

5 Founding affidavit 9:13; application 24 at 28:9; affidavit 30-31

6 Answer 47:10

7 Founding affidavit 10:18; letter 25 February 1997 32

8 Founding affidavit 10:17; answer 54:28

9 Founding affidavit 10:18; letter 14 March 1997 33; letter 25 March 1997 34; answer 55:29

10 Letter 25 March 1997 34:3

11 Founding affidavit 51:18.1

12 Answer 52:19

13 Answer 54:26.4

14 Founding affidavit 13:23-33; answer 56:32

15 Founding affidavit 16:32

16 Founding affidavit 16:33

17 Founding affidavit 13:23-26

18 Founding affidavit 14:28

19 Founding affidavit 15:30

20 Affidavit 30 at 31:10

21 Section 4(i)

22 Section 4(ii)

23 Section 4(iii)

24 Section 4(iv)

25 Section 4(v)

26 Section 4(vi)

27 [1985] 18 DLR (4th) 321 (SC)

28 at 353-354

29 Unreported judgment of the constitutional court delivered on 6 October 1997 in cases 38, 39 and 40/96

30 at para 92

31 [1994] 17 EHRR 397

32 at para 31

33 AIR [1954] SC 388

34 [1996] 1 SCR 825

35 24 BVerfGE 236 as reported by Currie, The Constitution of the Federal Republic of Germany 258-260 and by Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany 2nd edition 445-449

36 Hogg, Constitutional Law of Canada 3rd edition vol 2 33-14

37 [1985] 18 DLR (4th) 321 (SC)

38 at 350

39 at 352

40 1997 (6) BCLR 708 (CC)

41 at para 42

42 Unreported judgment delivered on 7 October 1997 in Case CCT9/97

43 at para 43

44 at 260-261

45 32 BVerfGE at 108

46 494 US 872; 108 L Ed 2d 876

47 at 878-879; 885

48 at 893-894; 895

49 at 894; 896

50 965; 903

51 905-907; 903-904

52 909-921; 906-913

53 426 US 229; 48 L Ed 2d 597

54 Unreported judgment delivered on 9 October 1997

55 at para 62

56 [1995] 29 CRR (2d) 79 (SC)

57 at 134

581997 (6) BCLR 708 (CC)

59 at para 41

60 Harksen v Lane, unreported judgment of the constitutional court delivered on 7 October 1997 in Case CCT 9/97, paras 47 and 53(b)

61 unreported judgment of the constitutional court delivered on 7 October 1997 in Case CCT 9/97

62 at para 51

63 Founding affidavit 6:6

64 1996 (2) SA 751 (CC) paras 60-61

65 1996 (4) BCLR 592 (CC) paras 7-9

66 Unreported judgment of the constitutional court delivered on 7 October 1997 in Case CCT 9/97 paras 74-77

671985(4) SA 115 (N) 116-118

68 1977 (4) SA 659 (A) at 674H-675D

69 As appears from the respondents' answering affidavit at p 56 para 34, if this court should grant the first of these two orders, they would not oppose the second.