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

The appellant, a practicing Rastafari, sought to register his contract of community service with the Law Society of the Cape of Good Hope to become an attorney, as required by 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 Rastafari religious practice. The appellant challenged this decision in the High Court, arguing it violated his constitutional rights to freedom of religion, dignity, choice of profession, and freedom from unfair discrimination. The challenge later expanded to include 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 criminalize possession and use of cannabis. The High Court and later the Supreme Court of Appeal both found the limitations on the appellant's religious freedom to be justifiable under section 36 of the Constitution, citing policing difficulties and drug abuse prevention. 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 for failing to provide a religious exemption for Rastafari use of cannabis
• Whether the record contains sufficient evidence to determine the constitutional issues
• Whether further evidence should be admitted on appeal in constitutional matters
• Whether proceedings in the Supreme Court of Appeal were a nullity for failing to sit as a bench of eleven judges when considering validity of Acts of Parliament as required by section 12(1)(b) of the Supreme Court Act, 1959
• Whether section 12(1)(b) of the Supreme Court Act remained valid after the interim Constitution came into force

1. Section 12(1)(b) of the Supreme Court Act 59 of 1959 declared invalid with effect from 27 April 1994 as inconsistent with the Constitution of the Republic of South Africa 200 of 1993. 2. The appellant granted leave to deliver evidence on affidavit by 24 January 2001 regarding how cannabis is used in Rastafari religion in South Africa, how it is obtained, whether the religion regulates its use, and any internal restrictions. 3. Respondents granted leave to deliver evidence by 14 February 2001 regarding their response, practical difficulties if exemption allowed, and how religious exemption would differ from existing medical/scientific exemptions. 4. Appellant to file response by 21 February 2001. 5. Further disposal to be in accordance with President's directions.

Section 12(1)(b) of the Supreme Court Act, 1959, which required the Supreme Court of Appeal to sit as a bench of eleven judges when determining validity of Acts of Parliament, became invalid from 27 April 1994 because it was inconsistent with section 101(5) read with section 98(2)(c) of the interim Constitution. The interim Constitution vested exclusive constitutional jurisdiction, including determination of validity of Acts of Parliament, in the Constitutional Court and expressly removed this jurisdiction from the SCA. Since section 12(1)(b) existed solely to regulate a jurisdiction that was removed by the interim Constitution, it was manifestly inconsistent with the interim Constitution and, by operation of the supremacy clause (section 4(1)), ceased to have legal effect from the date the interim Constitution came into operation. In constitutional matters involving fundamental rights of vulnerable minorities, courts may admit further evidence on appeal where: the validity of statutes serving important public interests is at issue; the constitutional right is of fundamental importance and extends beyond the individual litigant; lower courts have fully canvassed the issues; the litigation took an irregular procedural course but in understandable circumstances; the litigant has limited resources; and admitting evidence would cause no prejudice and is necessary for justice.

The Court made several important observations: (1) On religious freedom: The right to freedom of religion is one of the hallmarks of a free society and a key ingredient of human dignity. It goes beyond individual conscience to affect believers' relationships with their sense of self, community, and universe. Religious belief awakens concepts of self-worth and human dignity that form the cornerstone of human rights. The state should, where reasonably possible, avoid putting believers to a choice between their faith and respect for law. (2) On minority protection: The Rastafari community deserves protection precisely because it is a vulnerable minority. The constitutional right asserted goes beyond the appellant's individual interest and affects the entire Rastafari community. The social stigmatization faced by Rastafari due to cannabis use demonstrates their vulnerability. (3) On constitutional litigation procedure: Parties challenging constitutionality of statutory provisions must raise the challenge when instituting proceedings and place all relevant information before the court of first instance. It is insufficient to raise constitutionality only in heads of argument without proper foundation in papers or pleadings. The other party must be left in no doubt about the case to be met and relief sought. Parties cannot hope to supplement their case on appeal. (4) On lack of evidence: The Court identified specific evidentiary gaps regarding Rastafari religious practice in South Africa, including information about organizational structures, number of adherents, geographical spread, precise religious uses of cannabis, quantity used, methods of obtaining it, and internal regulations. The bare allegation of policing difficulties without supporting facts amounts to speculation, particularly given existing exemptions for research and medical purposes.

This interim judgment is significant in South African constitutional law for several reasons: (1) It clarifies the approach to admitting further evidence on appeal in constitutional matters, establishing that the considerations differ from ordinary civil appeals, particularly where fundamental rights of vulnerable minorities are at stake and lower courts have already addressed the issues. (2) It emphasizes the proper procedure for constitutional challenges, requiring parties to raise constitutional issues and provide supporting evidence at first instance, not merely in heads of argument. (3) It definitively resolves the jurisdictional consequence of the interim Constitution's reallocation of constitutional review powers, holding that section 12(1)(b) of the Supreme Court Act (requiring eleven judges for validity questions) became invalid when the SCA lost jurisdiction over constitutional matters. (4) It provides important dicta on the fundamental importance of freedom of religion in South Africa's constitutional democracy and the special vulnerability of minority religious groups like the Rastafari. (5) It signals the Court's willingness to ensure access to justice for vulnerable groups with limited resources, even where procedural irregularities occurred in lower courts. This case became the foundation for the subsequent substantive Prince judgment addressing religious freedom and drug laws.