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

Gareth Anver Prince applied to register his contract of community service as a candidate attorney with the Law Society of the Cape of Good Hope. In his affidavit, Prince disclosed two previous convictions under section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 for unlawful possession of cannabis sativa. He stated that he is a Rastafarian and uses cannabis as part of his religious observance, and that he intended to continue using the drug for religious purposes. The council of the Law Society objected to the registration on the ground that a person who states his intention to break the law cannot be regarded as a fit and proper person to have his contract registered as his conduct may bring the profession into disrepute. The secretary of the Law Society refused to register Prince's contract of community service. Prince applied to the Cape Provincial Division for a review and setting aside of the council's decision, which was dismissed. He appealed to the Supreme Court of Appeal.

• Whether section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 and section 22A(10) of the Medicines and Related Substances Control Act 101 of 1965 are unconstitutional for failing to provide an exemption for the use, possession and transportation of cannabis by Rastafarians for bona fide religious purposes
• Whether the Law Society's council properly exercised its discretion in refusing to register Prince's contract of community service
• Whether the requirement that a candidate attorney be a 'fit and proper person' under section 4A(b)(i) of the Attorneys Act 53 of 1979 was correctly applied
• Whether a declared intention to continue breaking the law disqualifies a person from being considered fit and proper to enter the legal profession

The appeal was dismissed with costs to the first, second and third respondents (the Law Society, its president and secretary).

A person who declares an intention to continue contravening the law cannot be regarded as a fit and proper person to be registered as a candidate attorney or admitted to the legal profession, as such conduct is inconsistent with the oath of allegiance required of attorneys and reflects adversely on character and the standards of behaviour expected of officers of the court. Courts cannot create exemptions to legislation through constitutional interpretation - they can strike down unconstitutional provisions or sever/read down overbroad provisions, but cannot legislate new exemptions. A general prohibition on cannabis possession and use does not unconstitutionally limit religious freedom where creating an exemption for religious use would not adequately protect society from drug abuse and would be impossible to police effectively. The determination of whether a candidate attorney is a 'fit and proper person' under section 4A(b)(i) of the Attorneys Act is not limited to considerations of honesty, integrity and reliability, but extends to all aspects of character and conduct relevant to fitness for the profession.

Hefer JA noted that drug abuse is a social problem with economic consequences from impairment of social functioning and enhanced proneness to asocial and antisocial behaviors. The Court expressed concern about the potential influx of neophytes attracted to the Rastafarian faith by the prospect of practically unfettered use of cannabis, and about cannabis often being a stepping stone to use of more harmful drugs. Hefer JA stated: 'one shudders at the thought of the consequences of lifting the ban to Rastafarians themselves and, more importantly, to society generally.' Mthiyane AJA made extensive obiter remarks about the nature and significance of the oath of allegiance required of attorneys, noting that the Republic of South Africa referred to in the oath is not a lifeless institution divorced from its system of laws, but encompasses the laws operating within the constitution. He observed that any person who wishes to be a member of the attorneys' profession and takes the oath swears loyalty to all the laws of the Republic, including the Drugs Act and Medicines Act.

This case is significant in South African law for establishing that: (1) Courts cannot create legislative exemptions through constitutional interpretation - they can strike down unconstitutional legislation or sever/read down overbroad provisions, but cannot legislate new exemptions. (2) The prohibition on cannabis possession and use does not violate the constitutional right to freedom of religion, even when cannabis use forms part of religious observance, as the limitation is justified under section 36(1) of the Constitution. (3) The 'fit and proper person' requirement for admission to the legal profession extends beyond honesty, integrity and reliability to include respect for and compliance with the law. (4) A declared intention to continue breaking the law, even for religious purposes, disqualifies a person from entering the legal profession as it amounts to a repudiation of the oath of allegiance. (5) Drug prohibition serves a legitimate governmental purpose of protecting society and cannot be partially lifted without leaving society inadequately protected. The case sets important precedent regarding the limits of religious freedom claims against generally applicable laws, the role of courts in constitutional matters, and professional fitness requirements.