Prince v Minister of Justice and Constitutional Development and others and related matters  2 All SA 864 (WCC)
Constitutional law – Right to privacy – Infringement of – Validity of laws which prohibit the use of cannabis and the possession, purchase of and cultivation exclusively for personal consumption – Sections 4(b) and 5(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 – Whether limitation on right to privacy, as imposed by impugned provisions, was justifiable in terms of section 36 of the Constitution of the Republic of South Africa, 1996 – Limitation should be narrowly tailored to achieve its purpose, it should be carefully focused and it should not be overbroad – Impugned legislation did not employ the least restrictive means to deal with problem and was unconstitutional.
At the heart of the present case was the validity of laws which prohibit the use of cannabis and the possession, purchase of and cultivation exclusively for personal consumption. The applicants sought a declaration that the legislative prohibition against the use of cannabis and the possession, purchase and cultivation of cannabis for personal or communal consumption was invalid. The specific impugned statutory provisions were sections 4(b) and 5(b) of the Drugs and Drug Trafficking Act 140 of 1992, section 22A(10) of the Medicines and Related Substances Control Act 101 of 1965 and section 40(1)(h) of the Criminal Procedure Act 51 of 1977 insofar as the latter referred to cannabis. The latter provision empowered a peace officer without a warrant to arrest any person who is reasonably suspected of having committed an offence under any law and governing the making, supply, possession or conveyance of cannabis.
The respondents raised the doctrine of res judicata contending that the issues which emerged in the present case had previously been disposed of by the Constitutional Court in Prince v President of the Law Society of the Cape of Good Hope and others 2002 (3) BCLR 231 (2002 (2) SA 794) (CC).
Held – It was clear that the Constitutional Court did not consider whether any prohibition as contained in sections 4 and 5 of the Drugs and Drug Trafficking Act infringed the right to privacy. The case turned instead on a limited question, namely an application for a limited exemption for religious reasons from the provisions of a criminal law of general application. Accordingly, the doctrine of res judicata did not apply, in that the Constitutional Court did not decide the dispute presently before this Court.
Essentially, the critical question raised by the applicants was whether government may legitimately dictate what people eat, drink or smoke in the confines of their own homes or in properly designated places. It had to be determined whether the infringement of the right to privacy caused by the impugned legislation could be justified in terms of section 36 of the Constitution.
Section 14 of the Constitution guarantees the right to privacy. The right to make intimate decisions and to have one’s personal autonomy protected is central to an individual’s identity and such individual is entitled to make decisions about these concerns without undue interference from the State. There is a connection between an individual’s right to privacy and the right to dignity which is protected in terms of section 10 of the Constitution. There is also a link between privacy and the right to freedom.
Any right guaranteed in Chapter 2 of the Constitution may be limited bylaw of general application, to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account a series of factors which are set out in section 36(1) of the Constitution. As the present case turned on the determination of the factors set out in section 36(1), the burden of justification rested upon the State.
The Court had to consider whether the relevant behaviour warranted constitutional protection or, expressed differently, whether what the court was dealing with was a genuine and serious violation of a constitutional right protected in Chapter 2. Once established that the infringement of a right is of so serious a nature that it is deserving of constitutional protection, a rigorous and careful process must be undertaken with respect to the justification for the impairment. The Court confirmed that the right to privacy not only passed the threshold test but was clearly deserving of constitutional protection, absent a clear justification to the contrary.
The State was required to show that there was a substantial State interest which justified the limitation. Despite the onus of proof resting on the State, the Court found the evidence advanced by the State to be unimpressive. Assuming that the respondents were correct that the objectives of prevention of abuse,a reduction in crime prevention of negative effects on driving ability, and detrimental neurological effects on driving ability, detrimental neurological effects upon the cardiovascular and respiratory systems were met by the impugned legislation, the respondents still needed to show why a less restrictive means to achieve the purpose was not possible. The limitation should be narrowly tailored to achieve its purpose, it should be carefully focused and it should not be overbroad. The evidence, read as a whole, could not be taken to justify the use of criminal law for the personal consumption of cannabis. The present prohibition contained in the impugned legislation did not employ the least restrictive means to deal with a social and health problem for which there were a number of less restrictive options supported by a significant body of expertise. The Court, therefore, held that less restrictive means should be employed to deal with the problem.
Explaining the ambit of judicial review, the Court held that it was not for this Court to prescribe alternatives to decriminalisation of the use of cannabis for personal use and consumption. It was for the Legislature and the executive to decide on a suitable option or alternatives.
Sections 4(b) and 5(b) of the Drugs and Drug Trafficking Act and section 22A(10) of the Medicines and Related Substances Control Act were declared inconsistent with the Constitution only to the extent that they prohibited the use of cannabis by an adult in private dwellings where the possession, purchase or cultivation of cannabis for personal consumption by an adult. The declaration of invalidity was suspended for aperiod of 24 months from the date of the judgment in order to allow Parliament to correct the defects.