SERJEANT AT THE BAR
The struggle of Rastafarian Gareth Prince to be admitted as an attorney has prompted three separate judgements from the Constitutional Court. This division between a majority of five and the minority of four (apparently two judges did not sit in the case) arguably provides a more interesting example of the different legal philosophies of the court than has been revealed in any other case.
Writing on behalf of the minority, Judge Sandile Ngcobo found that, to the extent that the provisions of the Drugs and Drug Trafficking Act prohibit the use or possession of cannabis by Rastafari adherents for bona fide religious purpose, the provision was unconstitutional.
Accordingly he would have given Parliament 12 months to cure the relevant defects in the impugned provisions. By contrast, the majority judgement written by Judges Arthur Chaskalson, Laurie Ackermann and Johan Kriegler held that the prohibition against the use or possession of cannabis served a legitimate government purpose and accordingly found against Prince.
So much for the bare conclusions. The real interest lies in the difference in reasoning employed in the judgements. There appeared to be a measure of agreement among the judges that the prohibition contravened Prince’s right to freedom of religion read together with the right to practise his religion and culture.
The critical difference between the justices turns on the justification offered by the state for the limitation of these constitutional rights.
Ngcobo commenced from the premise that the right to freedom of religion is of particular importance in our diverse society. Failure to protect diversity of opinion or belief undermines our constitutional society. Thus the relevant provisions of the Drugs and Drug Trafficking Act have the effect of stating “that in the eyes of the legal system all Rastafari are criminals. The stigma thus attached is manifest.”
Recognising the importance of the purpose of the legislation to prevent harm caused by the abuse of dependence-producing drugs and the suppression of trafficking in such drugs, Ncgobo sought to interrogate the government argument that this purpose requires a complete ban, even where the drugs are employed for a religious purpose.
In his analysis of this issue he emphasised that the onus was on the state to prove that “all religious uses of cannabis by Rastafari … 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”. He found that there was no evidence to suggest that a system of exemption could not be introduced that would allow Rastafarians to use cannabis while prohibitions would remain in place for the rest of society.
The majority’s disagreement is to be found in the argument that the legislation could be amended to provide for an exemption for religious purposes. They find that “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”. Thus if the exemption system favoured by the minority was introduced, “the state’s ability to enforce its drug legislation would be substantially impaired”.
In a further rejection of Prince’s case, the majority added some jurisprudential insult to legal injury when they suggested that an exemption system would not meet the needs of Rastafarians as the latter had demanded access to cannabis as a religious right rather than by dint of executive concession; as if an exemption was worse for Rastafarians than a blanket ban!
In a powerful, if overwritten, concurring minority judgement (what on earth is meant by: “dagga’s use in the diaspora today, is seen as re- establishing a ruptured Afro-centred mystical connection with the universe”?) Judge Albie Sachs agrees with Ncgobo that a narrow and closely defined exemption, which would be subject to manageable state supervision, would balance the competing rights of the appellant with the interests of the state.
He then accurately summarises the difference between the two approaches as being about the nature of the burden that the court is prepared to impose on the state to accommodate the convictions of a small and not very popular religious community, particularly when the practice itself does not violate any other constitutional right.
These competing judgements reveal significant differences of approach toward the protection of diversity. The majority nods in the direction of law and order, and hence appears to place the bar of justification of a limitation of rights at a very comfortable height for the state.
The minority emphasises the importance of diversity and hence the height of the bar is raised considerably.
The real question to ponder is whether these judgements are indicative of a more fundamental divide among the judges regarding deference to the state.