By Shadrack Muyesu
In 2000, Prince was denied admission to the Bar on the basis that he was a bhang smoker who had made it clear in his application that he would never stop.
Prince contested the decision and the matter went all the way up to the Constitutional Court of South Africa. His argument was simple: that Marijuana is a religious herb and Rastafarians such as him should be allowed to smoke. The Court agreed. Unfortunately, in so doing it also observed that, there would be no way of determining whether a smoker was doing it for religious or other purposes. To grant Prince’s prayers would be to act in vain, a cardinal sin. So Prince lost.
Not to give up, he launched another appeal 13 years later. This time, together with 3 other ordinary users, he begged the Court to allow the private consumption of marijuana as a leisure activity by anyone. Again the matter went up to the Constitutional Court. Upholding the decision of the High Court which the State had appealed, the Court granted Prince’s prayers. In doing so it made two telling observations.
The first is that the right to privacy extends beyond the confines of a house or dwelling home. This ought to mean that, in relation to the facts in issue, a user could sit alone in a park and light up. But does it?
The second is that, in limiting a right, the State should adopt the least intrusive and restrictive means possible. If there wasn’t a less punishing means, it was the duty of the State to demonstrate why and how so. Applying this to the facts, the Court reasoned that it was not enough to simply say that marijuana is harmful. The Court found that the State had only limitedly responded to a detailed report prepared by Experts in criminal behaviour from the University of Cape Town which showed that Marijuana use was anything but hazardous.
As I have hinted, the first observation is a most curious one. While the Court defined privacy to extend beyond the confines of walls or a home, it reiterated that smoking bhang in public remains an offence!
There is more to Prince. Having highlighted the issues, the constant stream of laudable jurisprudence from South African Courts should serve as constant reminder that, even with an expanded litigation space, a stronger regime of Human rights and a new era of transformative constitutionalism, our courts are not purring as they should. Time after time, the courts have failed to take advantage of beckoning constitutional moments. The matter on the retirement age of judges where politics took centre stage is one obvious example.
At this stage the words of eminent South African Jurist Albie Sachs come to mind. As he writes in The Strange Alchemy of Life and Law:
“In mature Supreme Courts, the work of the Court tends not to revolve around enunciating new principles but around contracting or expanding the outer frontiers of the Court’s own precedence. Only rarely are there moments of great judicial advance when completely new judicial principles are established. In our case however (the Constitutional Court of South Africa) being a new court with a new court with a new constitution and moreover a court that is encouraged to look to international jurisprudence, the enunciation of innovative principles has been our staple. Our primary goal has been to lay secure foundations for a transformative constitutional jurisprudence.”
In many ways our Supreme Court shares the character of the Constitutional Court of South Africa. In terms of age both are fairly young. With regard to law, both are founded on a liberal democratic constitution. On principle, both have embraced transformative constitutionalism as the guiding light in constitutional interpretation. Why then does our Supreme Court struggle to distinguish itself?
Lastly, on Anver Prince as a man and as a jurist, I can only say I have found a new mentor in the practice. While it should be the normal business of a lawyer to challenge established norms that make little sense in the modern world, such men are hard to find. The lawyer today has sacrificed the primary purpose of the study which is to guide debate and therefore build society at the altar of personal aggrandisement. As a result the public is lost. Perhaps I regard the man more highly than I should, as I share similar “rebellious” and inquisitive nature. Be that as it may, there is no doubting that Prince has made contributed immensely to the development of Law.(