Garreth Anver Prince v The President of the Law Society of the Cape of Good Hope and Others

The appellant, a practising Rastafari, sought to register his contract of community service with the Law Society of the Cape of Good Hope as required under section 5(2) of the Attorneys Act, 1979. The Law Society refused registration because the appellant had two previous convictions for possession of cannabis and declared his intention to continue using cannabis as required by his Rastafari religious practice. The Law Society took the view that someone who intends to continue breaking the law is not a fit and proper person to be admitted as an attorney. The appellant challenged this decision in the Cape High Court, alleging infringement of his constitutional rights to freedom of religion, dignity, choice of profession, and protection from unfair discrimination. For the first time in his heads of argument before the High Court, the appellant challenged the constitutionality of section 4(b) of the Drugs and Drug Trafficking Act, 1992 and section 22A(10) of the Medicines and Related Substances Control Act, 1965, which prohibit possession and use of cannabis. The High Court found the limitation on religious freedom justifiable under section 36 of the Constitution. The Supreme Court of Appeal (SCA) dismissed the constitutional challenge, finding insufficient evidence to fashion a suitable order for a religious exemption. The appellant appealed to the Constitutional Court with leave.

• Whether section 4(b) of the Drugs and Drug Trafficking Act, 1992 and section 22A(10) of the Medicines and Related Substances Control Act, 1965 are unconstitutional insofar as they do not exempt from prohibition the use, possession and transportation of cannabis for bona fide religious purposes by adult Rastafari
• Whether there is sufficient evidence in the record to enable the Constitutional Court to decide the constitutional issue
• Whether the Constitutional Court should call for further evidence
• Whether the proceedings in the Supreme Court of Appeal were a nullity for lack of a quorum (failure to sit as a bench of eleven judges as required by section 12(1)(b) of the Supreme Court Act, 1959)
• Whether section 12(1)(b) of the Supreme Court Act, 1959 remained valid under the interim Constitution and the 1996 Constitution

1. Section 12(1)(b) of the Supreme Court Act 59 of 1959 declared invalid with effect from 27 April 1994 for inconsistency with the interim Constitution. 2. The appellant granted leave to deliver evidence on affidavit by 24 January 2001 concerning how cannabis is used within Rastafari religion in South Africa, how it is obtained, whether the religion regulates its use, and related matters. 3. The respondents granted leave to deliver evidence on affidavit by 14 February 2001 concerning their response to appellant's evidence, practical difficulties of a religious exemption, and how such exemption would differ from existing medical and scientific exemptions. 4. The appellant to file response by 21 February 2001. 5. Further disposal to be in accordance with directions from the President of the Court.

1. Section 12(1)(b) of the Supreme Court Act, 1959, which required the SCA to sit as a quorum of eleven judges when considering the validity of an Act of Parliament, became invalid upon commencement of the interim Constitution on 27 April 1994 because it was inconsistent with section 101(5) read with section 98(2)(c) of the interim Constitution, which vested exclusive constitutional jurisdiction in the Constitutional Court and deprived the SCA of jurisdiction to adjudicate constitutional matters. 2. Laws inconsistent with the Constitution cease to have legal effect from the moment the Constitution comes into operation, by operation of the supremacy clause (section 4(1) of the interim Constitution). 3. In constitutional matters involving fundamental rights, courts may exercise discretion to allow further evidence on appeal where: (a) the validity of statutes serving important public interests is in issue; (b) the constitutional right is of fundamental importance and affects vulnerable minority groups; (c) the party has limited resources; (d) the issue has been fully canvassed by lower courts; (e) there will be no prejudice to other parties; and (f) the evidence is necessary to decide the constitutional issues. 4. Parties challenging the constitutionality of statutory provisions must raise the constitutional challenge and place relevant evidence before the court of first instance, not merely in heads of argument, to properly warn other parties of the case to be met.

Ngcobo J made several significant obiter observations: (1) On the importance of freedom of religion (quoting from Christian Education South Africa v Minister of Education): "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... For many believers, their relationship with God or creation is central to all their activities." (2) On minority religious groups: "The Rastafari community is not a powerful one. It is a vulnerable group. It deserves the protection of the law precisely because it is a vulnerable minority." (3) On balancing religious freedom with the rule of law: "While members of a religious community may not determine for themselves which laws they will obey and which they will not, the state should, where it is reasonably possible, seek to avoid putting the believers to a choice between their faith and respect for the law." (4) On constitutional litigation procedure: "Constitutional litigation is a relatively new area in our law" - explaining the understandable procedural course taken by parties. (5) The Court noted the social stigmatization faced by Rastafari due to their cannabis use, and how they are perceived as associated with drug abuse. (6) The Court observed that under the pre-1994 constitutional order, the SCA had only limited constitutional jurisdiction, which was progressively restricted over time.

This case is significant in South African constitutional jurisprudence for several reasons: (1) It affirms the fundamental importance of freedom of religion as a hallmark of an open and democratic society, particularly for vulnerable minority groups; (2) It establishes that parties challenging the constitutionality of legislation must raise the issue and place relevant evidence before the court of first instance, not merely in heads of argument; (3) It demonstrates the Constitutional Court's willingness to exercise flexibility in allowing further evidence on appeal in constitutional matters where fundamental rights are at stake, the party has limited resources, and there would be no prejudice to other parties; (4) It clarifies the constitutional jurisdiction of the Supreme Court of Appeal, holding that the SCA lost its jurisdiction to determine validity of Acts of Parliament when the interim Constitution vested exclusive constitutional jurisdiction in the Constitutional Court; (5) It illustrates the supremacy clause's operation - laws inconsistent with the Constitution cease to have legal effect from the moment of such inconsistency; (6) It recognizes the vulnerability of the Rastafari community and the need for constitutional protection of minority religious practices. The case remained pending for final determination on the merits after further evidence was filed.