Minister of Justice and Constitutional Development

Case Citation and General Information

Case No: Minister of Justice and Constitutional Development and others v Prince; National Director of Public Prosecutions and others v Rubin; National Director of Public Prosecutions and others v Acton and others

Citation: [2018] ZACC 30; 2018 (10) BCLR 1220 (CC); 2018 (6) SA 393 (CC)[1]

Court: The Constitutional Court of South Africa.

Decision Date:  September 18, 2018

Composition of the Bench: Zondo ACJ, Cameron J, Froneman J, Jafta J, Kathree-Setiloane AJ, Kollapen AJ, Madlanga J, Mhlantla J, Theron J, and Zondi AJ. (Unanimous judgment penned by Zondo ACJ).

Introduction

Minister of Justice and Constitutional Development v. Prince is one of the landmark cases in South African constitutional jurisprudence, as it shook the country in terms of legal provisions in drug policy and personal rights. Cannabis Growing, possession, and use have a long history of being prohibited in South Africa under a paternalistic criminal justice system, which has prohibited the use of marijuana (or dagga, as it is commonly referred to in the country) for over a century. This is the case in South Africa, which decriminalised the use, possession, and growth of cannabis by adults for individual consumption.[2]

The importance of the case goes way beyond what would happen should a botanical substance be legalised; however, it is a strong reaffirmation of the constitutional privilege to privacy. By invalidating the provisions of the Drugs and Drug Trafficking Act 140 of 1992 and the Medicines and Related Substances Control Act 101 of 1965, the Court set up the limits of state intrusion into the personal lives of its citizens. The ruling is a crucial analysis in the interpretation of the clause of limitations in Section 36 of the Constitution, a government interest in the prevention of crime and the spread of infectious diseases versus the basic right of human beings to be left alone in their personal environment.[3]

III. Facts of the Case

The genesis of this Constitutional Court decision is the amalgamation of three independent applications that started in the Western Cape High Court. The main respondent, who is a student law graduate and a practising Rastafarian, Mr Gareth Prince, had a long-standing history of objecting to the state ban on cannabis. In one of his earlier challenges (Prince v President of the Law Society of the Cape of Good Hope [2002]), he had attempted an exemption of the religious use of cannabis.[4] In the current case, Mr Prince, with Mr Jeremy Acton (leader of the Dagga Party) and Mr Jonathan Rubin, changed his legal case focus to constitute a wider constitutional challenge founded on the right to privacy.

The applicants went to the High Court to have an order declared that certain provisions of the Drugs Act and the Medicines Act were unconstitutional. These amendments made the use, possession, and cultivation of cannabis a crime. The applicants argued that the laws took advantage of their right to privacy in Section 14 of the Constitution of the Republic of South Africa, 1996, and were disproportionate and unjustifiable. According to them, the state had no rightful mandate to figure out what substances were to be taken by adults in the privacy of their own homes as long as the indulgence did not affect the well-being of others.

In March 2017, the applicants were ruled in favour of by the Western Cape High Court. The impugned legislation was declared unconstitutional and invalid by the High Court, to the point that it barred the personal use and planting of cannabis by adults. After going through the constitutional process, the Constitutional Court was asked to confirm the declaration of invalidity. At the same time, the state departments (the Minister of Justice, the Minister of Police, the Minister of Health, and the National Director of Public Prosecutions (NDPP)) also appealed the ruling of the High Court, claiming that the ban was a reasonable limitation on the right to privacy needed to safeguard society.[5]

Legal Issues

The Constitutional Court was going to consider the following major legal questions:

The question is, do the provisions of the Drugs and Drug trafficking Act 140 of 1992 (sections 4(b) and 5(b)) and the Medicines and related substances Control Act 101 of 1965 (sections 22A(9)(a) and (I) that criminalizes both the use, possession, and cultivation of cannabis violate the right to

In case an infringement has been proved, whether a limitation of this right to privacy is reasonable and justifiable in an open and democratic society in respect of human dignity, equality, and liberty in a way that is consistent with the limitation provision in Section 36 of the Constitution.

The correct relief that should be granted when the statutory provisions are characterised as being unconstitutional.

Arguments Presented

5.1 Arguments of the respondents (Original Applicants: Prince, Acton, Rubin)

The respondents based their argument on the sanctity of the right to privacy. A right to privacy, they assumed, entails a right of a grown-up individual to free choice about his or her body and mind in their own circle. By making it a crime to own and use cannabis privately, the state was intruding on the most personal sphere of life. Moreover, the respondents provided a great amount of medical and sociological data showing that cannabis is much less dangerous in comparison with other legally regulated substances like alcohol and tobacco, which were historically prohibited due to the historical colonial policies, which were outdated and based on racial bias.[6] Therefore, they argued that the criminal penalties meted out for possession of cannabis were grossly unequal to the perceived effects of the illicit drug.

5.2 Arguments of the appellants (The State)

The State passionately protested the affirmation of the order of the High Court. The petitioners claimed that the restriction on the right to privacy was reasonable in accordance with the provisions of Section 36 of the Constitution. Their main arguments were based on civil health and security. The State provided medical evidence which stated that cannabis use causes serious psychological and physical harm, cognitive impairment, respiratory complications, and creates an insurmountable burden to the general health care system.[7] Furthermore, the state argued that decriminalisation would result in an explosion of drug-related crimes, and a load to the common health care system too heavy to bear. Another area which turned out to be critical to the appellants was the involvement of the international obligations of the country, namely the United Nations Single Convention on Narcotic Drugs of 1961, with the contention that the international law sister countries had to uphold the ban on cannabis.

Court’s Reasoning and Analysis

In a decision that bears a tell-tale unanimity, his deputy Chief Justice, Zondo, wrote a painstaking and careful analysis of the constitutional matters. The Court’s rationale was divided into two steps, namely, the assertion of the violation of the right to privacy, and later analysis of limiting under Section 36.

To start with, the Court confirmed the existence of an extension of the right to privacy, as safeguarded by Section 14 of the Constitution, which is not only confined to the physical structure of a home. By applying the existing jurisprudence, such as the National Coalition for Gay and Lesbian Equality v Minister of Justice, the Court once again determined that a criminal ban on any of the actions employed by an adult to privately consume and grow cannabis was a direct and severe invasion of the right to privacy.[8]

A major part of the judgment was the analysis of the Section 36 limitation. The State was compelled to prove the lack of weight of the burden, both that the infringement of it was justifiable and reasonable. The Court questioned the medical evidence of both sides. Although the Court admitted that cannabis is not something one can be completely willing to use without, the evidence the State submitted on the harmfulness of the specific harm was considered less compelling and exaggerated. The Court has taken note of the reports by the World Health Organisation, which said the adverse health impacts of cannabis are not as serious as either alcohol or tobacco, which are both legal and regulated.[9]

Importantly, the Court assessed the less restrictive means test. The State could not prove that the crude tool of criminalising, which leads to arrests, criminal records, and destruction of livelihoods, was the sole feasible option to address the possible ill effects of cannabis. The Court held that more appropriate and less restrictive interventions that should be implemented to deal with the issue were public health campaigns, education, and regulation. On the aspect of international demands, the Court noted that international treaties must be read in balance with the domestic constitutional demands; the treaty cannot force a state to contravene the fundamental rights of the citizens of a state.[10]

VII. Ratio and Judgment.

Ratio Decendi: The main legal finding made by the Court is that the statutory ban on the use, possession, and growing of cannabis by an adult in his or her home with a view to personal use is an unwarranted restriction of the right to privacy outlined in the Constitution in Section 14. The state is not ready to find a strong reason to criminalise such acts when it takes place in a personal setting, and when it does not cause any harm to other people.

Ruling: The Constitutional Court affirmed the declaration of constitutional invalidity by the Western Cape High Court. Namely, the Court directed that:

Section 4(b) and Section 5(b) of the Drugs and Drug Trafficking Act and Section 22A(9)(a)(I) of the Medicines and Related Substances Control Act are invalid and unconstitutional to the degree that they criminalize the use, possession or cultivation of cannabis by an adult person in the privacy of his or her homestead to consume it.

To allow Parliament to provide remedies to the constitutional flaws in the legislation, the working of the order of invalidity was suspended over a period of 24 months.

The Court gave an interim readings-in remedy to offer relief in the present moment. This implied that adults could, as of the time, not be arrested or charged with either the personal use and possession or even cultivation of cannabis to use in a personal capacity.[11]

Specifically, the Court pointed out that the decision did not decriminalise the dealing or commercial sale of cannabis, nor did it allow the use of cannabis by minors or in open areas.

VIII. Critical Analysis

8.1 The importance of the decision made is as follows.

The Prince judgment is historic in its victory over constitutional supremacy and human rights in South Africa. It implies the change in basic assumptions between the tradition of drug policy as punitive, law-enforcement-oriented, and one based on rights and focused on public health. The Constitutional Court made a particularly important moment to safeguard individual autonomy against the undue invasion of the state by placing the right to privacy on top of moral panics that were rooted in the past. There are also far-reaching social justice implications of the decision. In South Africa, historic discrimination against less-advantaged areas, low-income earners, and indigenous groups was disproportionately applied to prohibit cannabis. Decriminalization also had an immediate effect by stopping the random arrest of thousands of citizens who had committed minor offences in possession, thus taking the additional load off the criminal justice system, which was already overstretched.[12]

8.2 Implications and Impact

In the ruling, the South African Parliament was put under a binding obligation to enact new legislation, which saw the adoption of the Cannabis for Private Purposes Bill. The immediate consequences of the ruling, however, made the grey area of legal issues more complicated. The Court allowed people to grow cannabis and use it privately, but upheld a stringent ban on its sales and commercialisation. This has given rise to what legal scholars refer to as the impeccable conception paradox: a person has a constitutional right to grow and use cannabis, but no legal process exists to effect the buying of the seeds, soil or even the starting material of the plant, leaving it to the discretion of the officers on the street to implement, a factor that has led to inconsideration in enforcement and a series of court cases.[13]

8.3 Critical Evaluation

Although the judgment, in its privacy analysis, has a sound jurisprudential approach, it can be criticised based on the safe scope. By being rigidly restrictive on the relief to right to privacy, the Court was avoiding the wider socio-economic prospects of a controlled cannabis market. The fact that the commercial aspect was not taken care of meant that the people of rural land who have farmed the cannabis over generations were not expunged so easily and would need individual intervention of lawmakers to correct the injustices that had happened before. [14]However, the tactical decision to depend on the privacy and not the freedom of religion (as it was tried in 2002) was a stroke of genius and ensured the ruling applied to all adult citizens and not a certain religious minority.

Conclusion

Minister of Justice and Constitutional Development v. Prince (1996) is a historic statement of the Constitutional Court, rooted in explaining the right to privacy in the modern day and age. The Court reiterated the fact that in a just and democratic society where human dignity and freedom are principles, the state should never have the authority to dictate to adults how to act on a personal level, as far as the victimless behaviour is concerned. Although the case will leave the legislature with some thorny regulatory and commercial issues to address, the essence of the ratio is an eloquent tribute to the ability of the South African Constitution to transform. It has become an important precedent not just in this country but also in the jurisdictions around the world that face the challenge of drug policy, human rights, and constitutional law.

Bibliography

Constitution of the Republic of South Africa, 1996.

 Drugs and Drug Trafficking Act 140 of 1992 (S. Afr.).

 Medicines and Related Substances Control Act 101 of 1965 (S. Afr.).

Minister of Justice and Constitutional Development and Others v Prince; National Director of Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others v Acton and Others [2018] ZACC 30; 2018 (10) BCLR 1220 (CC); 2018 (6) SA 393 (CC) (S. Afr.).

National Coalition for Gay and Lesbian Equality v Minister of Justice [1998] ZACC 15; 1999 (1) SA 6 (CC); 1998 (12) BCLR 1517 (CC) (S. Afr.).

Prince v President of the Law Society of the Cape of Good Hope [2002] ZACC 1; 2002 (2) SA 794 (CC); 2002 (3) BCLR 231 (CC) (S. Afr.).

 Kruger, L. (2019). “The Decriminalisation of Cannabis for Personal Use in South Africa.” South African Journal on Human Rights, 35(2), 188-205.

 Plasket, C. (2020). “Privacy, Paternalism, and the Prince Judgment.” Constitutional Court Review, 10(1), 45-68.

[1] Minister of Justice and Constitutional Development and Others v Prince [2018] ZACC 30; 2018 (10) BCLR 1220 (CC); 2018 (6) SA 393 (CC) (S. Afr.).

[2] Id. at para. 129.

[3] S. Afr. Const., 1996, § 36 (general limitation clause)

[4] Prince v President of the Law Society of the Cape of Good Hope [2002] ZACC 1; 2002 (2) SA 794 (CC) (S. Afr.). In this earlier case, the Court held by a narrow 5-4 majority that the prohibition of cannabis did not unconstitutionally infringe upon the applicant’s right to freedom of religion.

[5] Prince, 2018 (6) SA 393 (CC) at paras. 10-15.

[6] Id. at para. 65 (discussing the comparative harm of cannabis versus alcohol).

[7] Id. at paras. 70-72 (summarizing the medical statements of facts given by the State regarding the psychological impacts of cannabis).

[8] National Coalition for Gay and Lesbian Equality v Minister of Justice [1998] ZACC 15; 1999 (1) SA 6 (CC) at para. 32 (S. Afr.).

[9] Prince, 2018 (6) SA 393 (CC) at para. 74.

[10] Id. at paras. 80-85.

[11] Id. at para. 133 (Order of the Court).

[12] L. Kruger, The Decriminalisation of Cannabis for Personal Use in South Africa, 35 S. Afr. J. on Hum. Rts. 188, 195 (2019).

[13] C. Plasket, Privacy, Paternalism, and the Prince Judgment, 10 Const. Ct. Rev. 45, 60 (2020).

[14] Id. at 65.