Case No. 7236/1997

In the matter between

GARRETH ANVER PRINCE

Applicant

and

THE PRESIDENT OF THE LAW SOCIETY
OF THE CAPE OF GOOD HOPE

First Respondent

THE LAW SOCIETY
OF THE CAPE OF GOOD HOPE

Second Respondent

THE SECRETARY OF THE LAW SOCIETY
OF THE CAPE OF GOOD HOPE

Third Respondent

RESPONDENTS' HEADS OF ARGUMENT

ON THE ROLL: FRIDAY 21 NOVEMBER 1997

INTRODUCTION

1.

This is an application for judicial review brought in terms of rule 53 of the Uniform Rules.

2.

In his amended notice of motion the applicant seeks an order reviewing and setting aside a decision by the Law Society of the Cape of Good Hope ("the Society") not to register his contract of community service in terms of section 5(2) of the Attorneys Act, 1979.   He also seeks an order directing the third respondent, the secretary of the Society, to register the applicant's contract of community service with effect from 15 February 1997, and an order for costs.  The applicant does not persist with the prayer for costs.

Amended notice of motion: record p. 58
Applicant's heads: para 68, p. 54

3.

The respondents have opposed the application but have indicated that should the Court review and set aside the Society's decision not to register the applicant's contract of community service they would not oppose the granting of an order that third respondent register the contract with effect from 15 February 1997 (the date when the applicant intially applied for registration).

Answering affidavit para 34: record p. 56

THE APPLICANT'S INTENTION TO USE AND POSSESS CANNABIS

4.

In his application for registration, in the papers before the Court, and (in particular) in the heads of argument filed on his behalf, the applicant, a Rastafarian who has two previous convictions for possession of cannabis, has made it clear that in future he will continue to use cannabis and possess cannabis for personal use in spite of the fact that it is a criminal offence to do so.

Applicant's heads: para 18, p. 11

5.

The applicant avers that the use of cannabis plays a central role in his religious worship.  The respondents do not take issue with this.

Applicant's heads: para 17, pp. 10-11

THE SOCIETY'S OBJECTION TO REGISTRATION

6.

The Society objected to the registration of the applicant's contract of community service on the ground that it was not satisfied that he was a fit and proper person, as required by section 4A(b)(i) of the Attorneys Act.  The Society's attitude remains that it is not so satisfied because the applicant has stated and affirmed that he intends contravening the prohibition on the possession and use of cannabis.

7.

In its papers before the Court the Society has made it plain that it does not hold itself out as an arbiter of the moral content of laws.  It has it against the applicant's statements of his intention to defy the law.

Answering affidavit para 36.3: record p. 57.

THE APPLICANT'S ARGUMENTS

8.

On the strength of the arguments summarised in paragraphs 9 and 10 below the applicant claims that the relief sought should be granted.

9.

The applicant claims, in the first instance, that the Society "erred" in concluding that the applicant intended to break the law:

9.1

because the possession and use of cannabis by Rastafarians for the purposes of bona fide religious observance is "constitutionally protected" and, hence, "lawful" by virtue of section 4(b)(vi) of the Drugs and Drug Trafficking Act, 1992 - the applicant relies for this argument (and for the constitutional argument set out in paragraph 9.2 below) on the right to freedom of religion in sections 15(1) and 31(1)(a) of the Constitution, the prohibition of discrimination in section 9(3) thereof, and the right freely to choose one's profession in section 22 thereof; or

9.2

because the prohibition on the use and possession of cannabis in section 4(b) of the Drugs and Drug Trafficking Act is unconstitutional and invalid "insofar as it fails to exempt" the possession and use of cannabis by Rastafarians for the purposes of bona fide religious observance.

Applicant's heads: para 2, pp. 3-4

10.

The applicant claims, in the alternative, that the Society "erred" in concluding that he was not a.fit and proper person because, even if the possession and use of cannabis for the purposes of bona fide Rastafarian religious observance is prohibited by section 4(b) of the Drugs and Drug Trafficking Act and that section is constitutional, his possession and use of cannabis for those purposes does not render him unfit to be an attorney.

Ibid

THE SOCIETY'S RESPONSE

11.

The Society's response to this (in outline) is as follows:

11.1

These are proceedings for judicial review, not appeal.  Accordingly, the question is not whether the Society "erred", but whether it committed a reviewable irregularity.

11.2

The Court must determine, with reference to all the relevant factors, whether the Society's decision is justifiable.

11.3

The Society's decision is manifestly justifiable, both in relation to the reasons given for it, and because the result is reasonable.

11.4

The Society's decision also does not have any bearing on the dilemma, relied on by the applicant, of choosing between his religious convictions and obedience to the law.  Moreover, since the commencement of the interim Constitution the applicant has not made any attempt to test the constitutionality of the criminal prohibition.

11.5

Finally, the applicant's arguments on the questions of law summarised in paragraph 9 above fail for reasons which render it unnecessary to consider the "merits" of his constitutional attack on the criminal prohibition.  In the alternative, and in any event, the Society's answers to those questions are justifiable.

REVIEW NOT APPEAL

12.

The answer to the question whether the Society "erred", either for the reasons set out in paragraphs 9 and 10 above or for any other reason, has no bearing on the outcome of these proceedings.  These are proceedings for judicial review of the Society's decision.

13.

The first order which the applicant seeks is one "reviewing and setting aside the decision".  The practical effect of the Court's granting this order without more would be to compel the Society to decide anew whether or not to register the applicant's contract of community service.

14.

The second (mandatory) order is predicated on and tied up with the Court's first reviewing the Society's decision.  For it to grant either the first order or the second, the Court must review the legality of that decision.  The net effect of granting both orders would be the equivalent of an order "reviewing and correcting" the Society's decision not to register the applicant's contract of community service.

Cf. Baxter Administrative Law (1984) 676-7

15.

The remarks by the Jansen JA in Kudo's case, which are relied on by the applicant, are distinguishable.  In that case the Appellate Division was dealing with its powers as a Court of appeal against a decision by a provincial division not to re-admit the appellant as an attorney because it (the Court a quo) was not "satisfied" that he was a fit and proper person as required by section 4 of the Attorneys, Notaries and Conveyancers Admission Act, 1934.  Section 4 of the Act provided that "any fit and proper person" who is duly qualified etc. could apply to the Court in the manner prescribed in the Act to be admitted and enrolled as an attorney "and thereupon the Court shall ... admit and enrol such person ... unless cause to the contrary is shown to its satisfaction".  The question which the Appellate Division had to consider in that case was whether section 4 of that Act conferred a "discretion" on the Court of first instance, i.e. a discretion which would serve to limit the powers of a Court of appeal to substitute its own opinion for that of the former.

Kudo v Cape Law Society 1977 (4) SA 659 (A) at 674D-675F

Cf. Applicant's heads: para 65, p. 53

16.

In the course of the passage from Kudo's case cited above, Jansen JA remarked (at 675E) that "it is not a condition precedent to readmitting a person to practise that the law society should first be 'satisfied' as to his fitness".   This remark was preceded (at 674H) by the following description of a law society's role in applications for admission (and readmission) under the 1934 Act:

"Sec. 7 [of the 1934 Act] says that every person who applies to be admitted and enrolled as an attorney 'shall satisfy the law society' that he is a fit and proper person to be so admitted and enrolled.  That the law society should first be satisfied can clearly only be directory, requiring the applicant to attempt so to satisfy the society by supply it with all the relevant information in his application bearing on his fitness to practise.  The purpose of the provision is to enable the law society to determine what attitude it ought to adopt towards the application.  To hold otherwise would constitute the law society the supreme arbiter and not the Court - and that would be in conflict with the clear wording of sec. 4, and the obvious intention of the Legislature".

17.

The Society's role under sections 4 and 7 of the 1934 Act is clearly distinguishable from its role under sections 4A(b)(i) and 5(2) of the 1979 Act.  In particular, it is a condition precedent to the registration of a contract of community service that the law society should first be "satisfied" as to applicant's fitness.  If it were otherwise, these review proceedings would not have been necessary.  The applicant would simply have applied to Court for the registration of the contract.  But that is a function entrusted to the secretary of a law society by section 5(2) of the 1979 Act, not to the Court.  Moreover, when registering a contract in terms of that section the secretary performs a "ministerial" function (to use the old-fashioned terminology).  No discretion is involved, at least as regards the "fit and proper" question.  The secretary is bound to give effect to the Society's decision (taken under sections 4A(b)(i)).  The Society is the arbiter of the applicant's "fitness", subject (of course) to a successful application for judicial review.

18.

The question to be answered, therefore, is whether the Society committed a reviewable irregularity when deciding that it was not "satisfied" that the applicant was a fit and proper person, as required by section 4A(b)(i) of the Attorneys Act.

THE QUESTION TO BE ANSWERED

19.

The answer to this question does not turn solely on the answers to the questions of law set out paragraph 9 above.  As the applicant has limited himself to attacking "'substance" of the Society's decision (he does not allege a procedural irregularity or a failure of natural justice), the "justifiability" of the Society's decision must be examined.

20.

In essence, therefore, the Court must determine, with reference to all the relevant factors, including the answers to the questions of law set out paragraph 9 above, whether the Society's decision is "justifiable in relation to the reasons given for it" (see paragraph (d) of item 23(2)(b) of Schedule 6 to the Constitution which, it is submitted, encompasses the common-law grounds for reviewing the "substance" of administrative decisions, i.e. the functionary's reasoning process, and the adequacy of its reasons and the outcome).  The respondents accept that one of the consequences of the commencement of the Constitution of the Republic of South Africa, 1993, and its replacement by the new Constitution earlier this year, is that the Society must have defensible reasons not to be "satisfied" under section 4A(b)(i) of the Attorneys Act that an applicant is "fit and proper".

Roman v Williams NO 1997 (9) BCLR 1267 (C) at 1275E-1276C, 1278F-I

THE SOCIETY'S DECISION IS JUSTIFIABLE

21.

It is submitted that the Society's decision is manifestly justifiable in relation to the reasons given for it.  It is the product of a rational and coherent decision-making process, and the result is reasonable.

Cf. Du Plessis & Corder Understanding South Africa's Transitional Bill of Rights (1994) 169

22.

It is clear that the Society considered the question of the applicant's "fitness" in a rational and coherent manner.

Answering affidavit paras 10-12: record pp. 47-9

Record pp. 96, 110-13, 121-4

23.

The Society's reasons for deciding that it was not satisfied that the applicant was "fit and proper", as they emerge from the papers, are:

23.1

the use of cannabis and its possession for private use is a criminal offence;

23.2

the question whether it should be a criminal offence, and whether the criminal prohibition should apply uniformly, is a matter to be decided by Parliament and, if needs be, in appropriate proceedings in a Court of competent jurisdiction;

23.3

the criminal prohibition represents Parliament's judgment that the use and possession of cannabis is inherently harmful and dangerous;

23.4

the criminal prohibition is not obviously unconstitutional;

23.5

the Society is duty bound to act in a manner which advances respect for and compliance with the law;

23.6

the applicant's stated intention to break the law by using and possessing cannabis for personal use reflects adversely on his character, is inconsistent with the duties and obligations of members of the attorneys profession and is contrary to the standards of behaviour expected of would-be officers of the Court.

Answering affidavit paras 17-20, 36.3: record pp. 50-2, 57

The result is clearly reasonable.  Viewed from the perspective of the Society, the guardian of the attorneys profession and, through the profession, of public confidence in the law and the legal system, its decision not to grant the applicant registration advances respect for and compliance with the law.  At worst for the applicant the Society's decision compelled him to institute proceedings in a Court of competent jurisdiction for an appropriate declaratory order regarding the constitutionality or, perhaps, the legality, of the possession and use of cannabis by Rastafarians for the purposes of bona fide religious observance.  The Society would have had no interest in declaratory proceedings of that sort and could not validly have been joined as a respondent (nor would it have sought to do so).

THE APPLICANT'S "DILEMMA"

25.

In developing his alternative argument - viz. the argument set out in paragraph 10 above to the effect that the Society "erred" in concluding that the applicant was not a fit and proper person because his possession and use of cannabis (even if illegal) does not render him unfit to be an attorney - the applicant relies of the "dilemma" of being "forced to choose between his deeply felt religious convictions ... and obedience to the law".  Yet this dilemma is a product of the applicant's religious convictions and the law governing the use and possession of cannabis.  It has nothing to do with the Society or its decision not to register his contract of community service.  The Society's decision has not exacerbated the dilemma or, for that matter, impacted on it in any other way.  Indeed, even a decision to register would not have resolved the dilemma: the dilemma was, and remains, a matter of the applicant's choosing, in his day to day life, between his religious convictions and obedience to the law.

Applicant's heads para 64.2: pp. 51-2

26.

In any event, the perpetuation of the dilemma is attributable to the applicant's failure timeously to institute proceedings for appropriate declaratory orders and, perhaps (there is no evidence on this issue), his failure to raise the question of the constitutionality of section 4(b) of the Drugs and Drug Trafficking Act in the criminal trial last year in which he was convicted of unlawful possession of cannabis and sentenced to 3 months imprisonment or a fine of R1500, suspended for five years.  If successful, such proceedings would entirely resolve the applicant's difficulties.   The applicant has been a Rastafarian since January 1989.  The interim Constitution came into force in April 1994.  Nothing in the papers suggests that in the more than three and a half years since the commencement of the interim Constitution (the provisions of which do not differ materially from those upon which he now relies) the applicant has made any attempt to test the constitutionality of the criminal prohibition.   In other words, there is, and for a considerable period of time has been, an alternative open to the applicant.  He has not availed himself of this alternative.   Instead, he has adopted the attitude that he will continue to transgress the law.   That attitude, the Society has decided, reflects adversely on the applicant's character and is inconsistent with the duties and obligations of members of the profession and is contrary to the standards of behaviour expected of aspirant attorneys.  In reaching that decision, it is submitted, the Society acted entirely justifiably.

Cf. Answering affidavit para 8: record pp 46-7

THE QUESTIONS OF LAW

27.

As to the questions of law, it is submitted for the reasons given in paragraphs 28 to 30 below that the applicant's legal and constitutional arguments (which are summarised in paragraph 9 above) cannot succeed.  In the alternative, and in any event, it is submitted (again for the reasons given in those paragraphs), that the Society's answers to those questions are justifiable.  In proceedings for judicial review of all but purely judicial decisions - i.e. decision where a decision-maker is merely required to decide whether or not a person's conduct falls within a defined and objectively ascertainable criterion - the repository of the decision-making power should be afforded a margin of appreciation by the Court.  In cases such as the present, the enquiry on review is not whether the Society was correct in deciding that the use of cannabis and its possession for private use is a criminal offence, or that the criminal prohibition is not obviously unconstitutional (and therefore must be obeyed), but whether it was justified in reaching that decision.  When deciding whether someone is "fit and proper" the Society does not exercise powers or functions of a purely judicial nature.  Its decision-making power is discretionary, involving considerations of policy or desirability in the general interest.  Opinion or estimation plays an important role in the process.

Cf. Hira and another v Boovsen and another 1992 (4) SA 69 (A) at 91E-F and 931-94A

28.

The exception to the criminal prohibition in section 4(b)(vi) of the Drugs and Drug Trafficking Act is limited to "lawful" possession of cannabis.   The language and structure of section 4(b) is such that no amount of "interpretation" could extend the compass of section 4(b)(vi) to include the use of cannabis.  As a result, section 4(b)(vi) could never "legalise" the applicant's stated, intended use.  This contention, if upheld, disposes of the argument set out in paragraph 9.1 above.

29.

What the applicant asks this Court to do (with the argument set out in paragraph 9.2 above) is to amend the Drugs and Drug Trafficking Act so as to make provision for a "bona fide Rastafarian religious observance" exception to the prohibition imposed by section 4(b) of the Act.  In the as yet unreported "711" case, however, the Constitutional Court made it abundantly clear that although a Court of competent jurisdiction can strike down legislation as unconstitutional and can sever or read down provisions of legislation that are inconsistent with the Constitution because they are overbroad, and although it may have to fashion orders to give effect to the rights protected by the Constitution, what it cannot do is legislate.

S v Lawrence: S v Negal: S v Solberg, unreported, Constitutional Court, 6 October 1997, case nos. CCT 38, 39 and 40 of 1996, at paragraph 130

30.

What the applicant has not done - and something which he would have great difficulty in doing, at least on the basis of the fundamental rights invoked on his behalf (freedom of religion, the prohibition of discrimination and free choice of one's profession) - is to ask for section 4(b) of the Drugs and Drug Trafficking Act to be struck down as a whole.  Yet if the applicant wishes to challenge the constitutionality of prohibiting Rastafarians from possessing and using cannabis for the purposes of bona fide religious observance that is what he must do.  The challenge should be directed at the entire criminal prohibition, i.e. the whole of section 4(b) of the Act.

THE APPLICATION SHOULD FAIL

31.

If the contentions in paragraphs 21 to 30 above are accepted by the Court, both the application for judicial review and, to the extent that it may be relevant, the applicant's alternative "error" argument (which is summarised in paragraph 10 above), must fail.  Moreover, in view of the basic difficulties which beset the applicant's "section 4(b)(vi)" argument, as well as his constitutional arguments, when answering the questions of law summarised in paragraph 9 above there is no need to examine the merits of the applicant's argument that section 4(b) of the Drugs and Drug Trafficking Act is unconstitutional and invalid "insofar as it fails to exempt" the possession and use of cannabis by Rastafarians for the purposes of bona fide religious observance.  Finally, the Society's decision on these issues is clearly justifiable.

THE SOCIETY'S DECISION NOT TO DEFEND THE CRIMINAL
PROHIBITION (AND ITS INABILITY PROPERLY TO DO SO)

32.

In any event, I am instructed that the Society has decided that it would be inappropriate for it to argue in favour of (or against) the constitutionality of the criminal prohibition (cf. the statement of the objects of the Society in section 58 of the Attorneys Act).  As indicated above, the Society's attitude is that the (de)criminalisation of the use of cannabis and its possession for personal use is a matter to be decided by Parliament.

33.

The Society is concerned, however, that should the Court reject its approach to the matter in favour of that adopted in the heads of argument filed on the applicant's behalf, the constitutionality of the criminal prohibition will be considered in proceedings to which the executive authority responsible for the administration of the Act - the Minister of Justice - is not a party (cf. rule 4(8) of the Rules of the Constitutional Court).

34.

Moreover, the Society is not in a position to marshal the evidence relevant to the question whether any infringement of sections 9(3), 15(1), 22 or 33(1)(a) of the Constitution which the Court might find can be justified in terms of section 36 thereof, the "limitations clause".  As a result, the Court will be left with little assistance regarding the purpose and effects of the criminal prohibition.   Inevitably, as O'Regan J remarked in the "711" case, the absence of such evidence is an obstacle to the exercise the Court has to conduct in terms of the limitations clause.  It makes it far less likely that the Court will conclude that the infringement is justified.

S v Lawrence: S v Negal: S v Solberg, supra, at paragraph 130

Cf. applicants' heads para 60, p. 47

35.

Finally, although section 172(2)(d) of the Constitution would allow the Minister to appeal, or apply, directly to the Constitutional Court to vary any order of constitutional invalidity which this Court might make, in view of the difficulties which attend adducing evidence for the first time in the Constitutional Court that Court is clearly anxious that, wherever possible, evidence be adduced in the court of first instance.

See S v Lawrence: S v Negal: S v Solberg, supra, at paras 14, 20 and 24

THE SOCIETY'S NOTICE TO THE MINISTER

36.

I am instructed that on 12 November 1997 the Society delivered a letter to the Minister of Justice notifying him of these proceedings, and informing him of the Society's decision not to argue in favour of the constitutionality of criminal prohibition and of its limited capacity to marshal the requisite evidence (even if it were minded to so argue).  The Society stated that should the Minister seek to intervene as a party to these proceedings it would consent and, if needs be, also agree to the postponement of the hearing to a date early in the first term of next year (to enable the Minister to file affidavits).  The Society, however, does not itself request that the matter be postponed.  On the contrary, for the reasons given above, it is submitted that the application falls to be dismissed.

37.

I am instructed that a copy of the letter to the Minister was delivered to the applicant's attorneys of record on 13 November 1997.

CONCLUDING REMARKS

38.

It is submitted that there is no reason why costs should not follow the result in this matter.

39.

In the premises, it is submitted that the application should be dismissed with costs.

A M BREITENBACH

Chambers
Cape Town
13 November 1997