The Curious Case of Prince v President

Prince dreamed about becoming an Attorney. The Law Society, however, refused to register Prince as an Attorney due to his two previous convictions on the count of dagga possession. 

Prince took the Law Society to Court and based his arguments on the following: infringement of his right to freedom of religion as a Rastafarian, unfair discrimination as part of a minority group in South Africa, the right to choose his trade and occupation freely and infringement of his right to human dignity. 

The Constitutional Court (decided on 12 December 2000):

• Yes, the Constitutional Court agreed that the Drugs and Drug Trafficking Act of 1992 DOES in fact infringe Prince’s constitutional right to freedom of religion;
• This limitation is, however, justified. Constitutional rights are not absolute and can be limited in terms of section 36 of our Constitution “only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including— (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose.”
• The State has an important obligation to combat the use of and trade of drugs and has signed international agreements to do so. There is furthermore little information available on the use of dagga and South Africa’s Rastafarian community to justify a religious exemption.

Did you know? 

• · Cannabis/ marijuana/ dagga has been in use for over 8 millennia;
• · R300 million: the cost in Gauteng alone to arrest, prosecute and keep marijuana offenders in jail - according to research conducted by the Anti-Drug Alliance NGO; 
• · Some argue that there is very little evidence to support that Marijuana is harmful or addictive whilst others argue that all medicines and even herbs have side effects;
• · USA: about 23 States have legalized medical marijuana, and others are in the process of following suit;
• · South Africa: the Medical Innovation Bill (draft law to legalize marijuana in South Africa for medical, economical and industrial use), was introduced in Parliament in February 2014. It could take a number of years for the bill to be signed and become law. Some argue that the Bill is just a copy and paste version and does not cater for South Africa’s unique circumstances. 

Unfortunately Prince’s dream to become an Attorney did not materialize. One must note that the Medical Innovation Bill, even if it were law, would not have helped Prince. Reason: Prince used marijuana for religious/ spiritual purposes and not for medical reasons. In this case the Constitutional Court, however, once again acknowledges our right to freedom of religion and quotes a well-known passage from the case Christian v Minister of Education 2000 (10) BCLR 1051 (CC) para 36: 

Yours Faithfully, 

Legal Hero 

www.legalhero.co.za 

Your School's Uniform and Dress Code

The Federal Constitutional Court (Germany) declared a ban on teachers wearing Islamic headscarves unconstitutional on Friday, 13 March 2015.

The decision reminds us of the South African Constitutional Court case of a few years ago: MEC for Education v Pillay 2008. Yes, South Africa has one of the best constitutions in the world.

With Human Rights Day around the corner (21st of March), let's have a look at the Pillay case... 

It could therefore be within a learner’s right to wear a nose stud to school if it forms part of the learner's religion or culture. Schools are thus advised to allow for a procedure in terms of which a learner can apply to wear a religious or cultural piece. According to the Pillay case, the fact that an exemption might encourage more learners to express their religion or culture, should be celebrated and not feared.

Proudly South African.

www.legalhero.co.za 

Know Your Socio-economic Rights!

Socio-economic Rights include the right to adequate housing, food, health services and water. In other words, these rights are basic essentials necessary to survive. 

It differs from Civil and Political rights (the right to vote, freedom of speech, equality, etc.) necessary to lead a full life.

Our Human Rights (both Civil/ Political and Socio-economic) are found in Chapter Two of our Constitution, the Bill of Rights. The wording of our Constitution qualifies certain Socio-economic Rights. 

Socio-economic rights can be qualified or unqualified 

· Qualified: 

- Only if the State (Government) has sufficient resources to fulfil the right;

- The State will make these rights available within its means/ depending on its budget/ ‘within available resources.'

· Unqualified: 

- The State has a duty to make these rights available; 

- This does not mean the State must make these rights available immediately or without delay (according to the Constitutional Court).

Human right violations: 

Speak to your hero/ attorney. Alternatively, you may contact the South African Human Rights Commission at complaints@sahrc.org.za.

Note: non-nationals can also claim Socio-economic Rights. If you have a look at the wording used in the Bill of Rights, you'll notice the word 'everyone' is used in the socio-economic sections. Also, in the Khosa case of 2004, the Constitutional Court once again highlighted that non-nationals are a vulnerable group in our society and should be protected.

Other rights, however, such as the right to vote and access to land, use the word 'citizens.'

Wishing you a wonderful Friday and weekend, 

Legal Hero

www.legalhero.co.za 

Human Dignity – fundamental value and justiciable right

When it comes to our basic human rights, those that usually jump to mind include access to water, adequate housing, health care services, basic education, etc. Perhaps it is because these rights are easy to explain.

What about the right to dignity? Section 10 of our Constitution reads that everyone has the right to have their dignity respected and protected.

Dignity is, however, often described as ‘fluffy’ in that our Constitutional Court has yet to define it. Many therefore argue that it cannot be seen as a human right on its own and rather serves as a guide/ value when interpreting the various other human rights found in our Constitution.

In the spirit of Human Rights Month, we have assembled some of our favourite judgement quotes on human dignity. 

1. In S v Dodo, concerning cruel and degrading punishment, the court raised the importance of human dignity.

2. Human dignity furthermore endorses our political rights.

3. In the case quoted below, it was acknowledged that “dignity is a difficult concept to capture in precise terms.” Nonetheless, it was ruled that the criminalisation of sodomy impairs human dignity.

 

     4. The Dawood case highlighted that human dignity is also a justiciable and enforceable right in itself. The court stressed that a human rights infringement can infringe more than one right. Cruel and degrading punishment infringes our right to bodily integrity as well as our right to human dignity, for example.

        

Wishing you a spectacular Monday! 

Yours truly,

Legal Hero. 

www.legalhero.co.za

Three Quirky Truths about Equality

1. Banning prostitution does not amount to indirect unfair discrimination against women.

This is according to the court case of S v Jordaan. The judge ruled that the problem lies with women generating supply and not with men’s demand. It was ruled that the prohibition cannot be said to be unfair on the basis that the majority of offenders are women.

2. There is a difference between formal and substantive equality.

Formal: Equal treatment for all. Section 9(2) of our Constitution reads that everyone is entitled to the same protection and benefit of the law.
Substantive: Unequal treatment in order to reach the Constitution’s goal of an equal society. Our courts have ruled that it would take much longer to restore the injustices of the past if one were to treat everyone identically, without taking into account his/ her/ the group’s social and economic circumstances. Example: Affirmative Action.

3. In S v Hugo the court agreed that there was in fact discrimination, but ruled that the discrimination was fair.

In the Hugo case the President pardoned mothers with children under the age of 12 from prison. A single father of a child under 12 applied to have this decision declared unconstitutional as it unfairly discriminated against his gender.

The court ruled that this pardon does amount to discrimination but that this discrimination is not unfair in that the generalisation (that mothers are more often than not the caretakers of minors) is acceptable. The court, however, ruled that each case should be treated on its own merits and stressed the importance of context and the impact of the discrimination (our prisons are overcrowded, society would not react well to the release of both parents as it will be a very large group & this pardon does not deprive the father from applying for an early release).