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 

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).