IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA Case CCT 108/17 In the matter between: MINISTER OF JUSTICE AND CONSTITUTIONAL 1 st Appellant DEVELOPMENT MINISTER OF POLICE MINISTER OF HEALTH MINISTER OF TRADE AND INDUSTRY NATIONAL DIRECTORATE OF PUBLIC 2 nd Appellant 3 rd Appellant 4 th Appellant 5 th Appellant PROSECUTIONS And GARRETH PRINCE 1 st Respondent and KATHLEEN ( MYRTLE ) CLARKE JULIAN CHRISTOPHER STOBBS CLIFFORD ALAN NEALE THORPE 1 st Intervening Party 2 nd Intervening Party 3 rd Intervening Party And DOCTORS FOR LIFE INTERNATIONAL INC. 1 st Amicus Curiae FILING NOTICE TAKE NOTICE THAT THE 1ST RESPONDENT HEREBY PRESENT FOR SERVICE: WRITTEN SUBMISSIONS PURSUANT TO DIRECTIVE ISSUED ON 8 NOVEMBER 2017. Dated on this 24 th day of November 2017 at CAPE TOWN GARRETH ANVER PRINCE
TO: THE REGISTRAR CONSTITUTIONAL COURT BRAAMFONTEIN GAUTENG service by email TO: THE STATE ATTORNEY REF: MS PAMELA MELAPI 4TH FLOOR 22 LONG STREET CAPE TOWN C/O THE STATE ATTORNEY 10TH FLOOR NORTH STATE BUILDING CORNER MARKET&KRUIS STREET GAUTENG REF: Mr V DHULAM TO: SCHINDLERS ATTORNEYS 2ND FLOOR 3 MELROSE BOULEVARD MELROSE ARCH GAUTENG PO BOX 10909 TO Adv Ron Paschke
1. OVERVIEW This honourable court issued directions in the above matter asking for submissions as to whether the proceedings in casu should be stayed pending the outcome of the trial in the Stobbs matter. There are procedural as well as substantive reasons that militate against a stay of proceedings, but in essence the primary reason why a stay of proceedings is inappropriate in these proceedings is because it would defeat the interest of justice. I principally align myself with the comprehensive submissions made by the 1-3 intervening parties and only wishes to make a few further submissions. PROCEDURAL ISSUES 2.1 The Directive; in my respectful opinion, cast doubt on whether the unanimous WCHC fully applied their minds to the matter at hand. This is unfortunate because the WCHC in our submission, dealt with the evidence rationally and objectively. The state was asked to meet a case as to why arrest for cannabis usage was appropriate and necessary in an open and free democratic society; and they failed to do so. The fact that the WCHC chose to structure their ratio decedendi around the Right to Privacy, was not wrong, legally speaking. The court was well within their rights to find that the legislation violated the right to privacy. The fact that the court declined to address the other rights violations is to be regretted but it does not give cause for postponement or reason to interfere with the findings of the court. As I argued in my papers before this court, it falls well within the animating judicial policy of this court, which is minimalism. 2.2 I respectfully submit that the High Court did not err in consolidating the matters as motion proceedings for the primary reason that there were no dispute on the pertinent facts. The fact that we were all arrested detained and arraigned is not in dispute. The dispute, as I submitted; was in respect of how the legislation in question should be interpreted. 2.3 The question as to whether the Court properly assessed the evidence or the lack thereof must be answered in the affirmative. On the evidence before the court
there was no other conclusion to be reached. The state failed in justifying their actions because their actions are indefensible. 2.4 This court confirmed in Mokone v Tassos Properties CC and Another [2017] ZACC 25 that the interest of justice must be determined in accordance with the facts of each case @Prg 67-68. I submit that the sentiments expressed by Madlanga J @ prg 70 are equally apposite in this case. It seems unjust to require Ms Mokone to be uprooted and her business brought to a halt or destroyed in circumstances where the purchaser might not have been an innocent player when it purchased or took transfer of the leased premise 2.5 It would be similarly unjust to allow the state to continue arresting Rastafari and members of the Cannabis community when there is overwhelming evidence that the State party is not innocent or bona fide. Furthermore there is reasonable doubt as to whether the actus reus of cannabis possession or cultivation should attract criminal sanction. As it stands constitutional rights are being denied to the Rastafari and Cannabis communities on speculative or controversial grounds. 2.6 The WCHC made a finding of unconstitutionality in respect of the impugned provisions. That obligates this court to either confirm or deny. This court held unanimously in Van der Merwe v Van der Merwe 2006(4) SA 230 CC @ prg21 The High Court has made an order of constitutional invalidity of a section in an act of parliament. Under our Constitution, the order has no force unless this Court confirms it. It seems to me self-evident that once an order of constitutional invalidity is made by the High Court and referred to this Court it is not open to us to refuse to enquire into the validity or otherwise of the legislation. The Court is obliged to pronounce upon the constitutional validity of the impugned provision and thereby confirm or refuse to confirm the order. If it were otherwise, the order of constitutional invalidity of the High Court would languish in limbo and needlessly spawn public uncertainty (footnotes removed) 2.7 Only if the interest of justice dictates otherwise should a court refrain from making such a determination. Here the interest of justice dictates that this court make a finding poste haste because as the evidence clearly show; the Police target cannabis users for reasons that does not withstand constitutional scrutiny.
They are prepared to use our society s most extreme sanction in respect of an activity that is cultural, religious, medicinal and recreational. The state must provide reasons for this extreme action which they dismally failed to do. 2.8 The paucity of evidence they referred to; even if it were true would not be reason enough to postpone; as Sachs J argued in S v Makwanyane 1995(3) SA 123 CC at prg 372 Appropriate source material is limited and any conclusions that individual members of this court might wish to offer would inevitably have to be tentative rather than definitive. We would certainly require much fuller research and argument than we had in the present case. The paucity of materials, however, is a reason for putting the issue on the agenda, not a justification for postponing it 2.9 In this case there is not a paucity of evidence; because this case is not about whether cannabis is harmful or not. The pertinent issues are, as I submitted; whether the impugned provisions comport with our contemporary overstanding of freedom, equality and dignity. Furthermore it must be established whether the impugned provisions comports with the right to be presumed innocent and the prohibition against arbitrariness and absolute or strict liability. These are strictly jurisprudential or legal issues for which this court is uniquely constituted. If the impugned provisions is found to not comport with our grundnorms that is dispositive of the matter. This is not an evidentiary matter, it is a jurisprudential matter. At issue in this case is how the legislation in question must be interpreted; and interpretation is a function of this court. 2.10 The evidence that the trial in the Stobbs matter will establish has little bearing on the issues that confronts this court. At most it might establish that cannabis is harmful, but our society does not proscribe activity or products simply because they are harmful. The state failed to even come up with an answer as to what the threshold must be before the constitutional state may interfere with personal liberty. 3 SUBSTANTIVE ISSUES
3.1 The applicants in the WCHC impugned certain sections of the Criminal Procedure Act 51/77, Drugs and Drugs Trafficking Act 140/92, and certain provisions of the Medicines and Related Substances Act 101/65. The impugned provisions criminalizes and prohibits the usage of cannabis by ordinary citizens, and does not allow any usage of cannabis apart from limited exemptions for research purposes. The impugned provisions also gives the police a very wide scope to arrest citizens and allows the court to convict in the face of reasonable doubt. Our complaint was that the impugned provisions are not are not narrowly defined, they are not appropriately circumscribed and they don t get narrowly interpreted. At the time that the criminal provisions there were no attempts to regulate the medicinal usage of cannabis. These exemptions were thus for all intents and purposes non existent. 3.2 We charged that the impugned provisions were arbitrary and irrational, based primarily on the fact that the legislature unreasonably and unjustifiably differentiate between groups of people, on the basis of criteria that cannot objectively be related to the intrinsic nature of the activities concerned. Alternatively we argued that the impugned provisions were overbroad and or grossly disproportionate. 3.3 The fact that imprisonment is used as the primary means to regulate the usage of cannabis amounts to a disproportionate or arbitrary usage of the state police power; in our submission. We complained about the fact that we are subject to arrest, whilst others that engage in the same normative act as ourselves are not. This; in our submission, amounted to Rastafari and the Cannabis community being subject to a legislative regime that distributes burden and or benefit unevenly. That obviously implicates equality concerns as well as freedom and dignity; the grundnorms of our society. All of the applicants were arrested, detained and arraigned by the respondents. This is not in dispute. That makes out our prima facie case that rights were implicated and violated. It is trite law that an arrest amounts to a prima facie violation of rights. Arrest is not trivial or insignificant and is the most severe sanction that the democratic state can impose, in the absence of the death penalty; as is our case. 3.4 We further argued that the impugned provisions violated several other constitutional rights and that the rights violations in casu are acute and
intersecting. This in our submission required a compelling and substantive justification from the state. 4 WCHC FINDINGS 4.1 The WCHC agreed that our government s response to the regulation of cannabis is disproportionate. The court declined to state whether the extent of the disproportion amounted to arbitrariness as argued by this respondent. The court agreed that arrest is too severe a sanction, even if it is accepted that cannabis poses a health risk. In accordance with the observation of this court in Teddy Bear Clinic 2013 ZACC 235 that usage of the Criminal Penal Code in respect of health or social issues is seldom justified. The WCHC held that there are several non- penal alternatives that would serve our constitutional project better. This conclusion cannot be gainsaid. The state failed dismally to discharge their duty of justifying the impugned provisions with the court properly concluding that the evidence of the state were singularly unimpressive. 4.2 In Min of Police v Kunjana 2016 ZACC 21 this court declared provisions of the Drugs Act unconstitutional. The court was at pains at prg 25 to point out Surely police officials can prevent and prosecute offences under the Drugs Act in a less restrictive fashion than what is contemplated in this section to Even though the issues related to Mandrax and the court recognizing the danger of that drug, the fact that Mandrax is harmful was clearly not enough reason to groundate constitutionality. Here the danger of cannabis is not even established, yet the state wants to imprison. 4.3 The WCHC also held that the state did not meet its burden. The jurisprudence in this regard is clear and there is no evidence that the court mistaked the ambit of its powers or relied inappropriately on evidence it should not have. A finding that the state did not meet its burden must lead to a finding of unconstitutionality in respect of the impugned provisions. The interest of justice militates against the granting of a stay. In conclusion we pray this court grant the same order it did in Teddy Bear Clinic, alternatively I support the order proposed by the 1-3 I ntervening parties. Ras Garreth Prince.