Question 1

Section 15(1) of the Constitution provides for the right of freedom of conscience, religion,
thought, belief and opinion. It is broad and protects in essence not only religion but an extremely
wide range of views like the individual aspect of religion such as the right of an individual to
practice religion. Section 31 of the Constitution however protects the collective aspect of
freedom of religion, it acknowledges that religious practice often requires individuals to interact
with fellow believers. So the right to religion in State v Lawrence was held to include the right to
entertain religious beliefs as a person, the right to declare religious beliefs openly and without
fear of hindrance or reprisal, the right to manifest religious belief by worship and practice or by
teaching and dissemination.1 It was therefore construed to entail three components. Firstly an
individual has the right to choose the religion of their choice and to change it and no one can
discriminate against another on the basis of their religion/ belief. The second component is the
right to declare ones religion publicly without being compelled to practice in private,
individuals must be allowed to practice their religion publicly. Third, is the right to manifest
ones religion by worship, teaching, dissemination, practice or observance.
The right to freedom of religion also includes freedom from coercion. The court in Christian
Education South Africa v Minister of Education held that it is only when there is the absence of
coercion or constraint that we can say that the particular religion is not impaired or is protected.2
Further in Prince v President of the Law Society of the Cape of Good Hope and Others the court
it was held that the right protects both big and small religions. It also protects religion
irrespective of the doctrine it teaches therefore stigmatisation does not affect the fact that it is a
legitimate teaching that requires protection from the Constitution. 3 It is clear Mr Hale is a
genuine and bona fide member of the identifiable Spiritist religion. The religious significance of
the practice is a ceremonial one and although the practice is essential but not mandatory, it is a
general rule that the court should not be concerned whether a particular practice is central to a
religion because religion is a matter of faith and belief and a practice may be central for some
1S v Lawrence 1997 (10) BCLR 1348 ; 1997 (4) SA 1176 at para 92

2Christian Education South Africa v Minister of Education 2000 (4) SA 757; 2000 (10) BCLR 1051 at para 19

3Prince v President of the Law Society of the Cape of Good Hope 2002 (2) SA 794; 2002 (3) BCLR 231 at para 49

believers but not for others.4 Also in Kwazulu-Natal MEC for education v Pillay the court held
that whether a practice is mandatory or voluntary is irrelevant in determining its importance but
is relevant for the limitation. So a mandatory practice would require a greater justification for the
limitation as opposed to a voluntary practice.5 The fact remains that Mr Hales religion is a
subjective one entitled to protection by the Bill of Rights. The prohibition contained in Schedule
8 of the Controlled Substances Act requires Mr Hale to refrain from using Roibon and this is
contrary to their belief. They are forced to choose between following their religion or complying
with the law. The prohibition on the use or possession of cannabis thus manifestly limits the
rights of the Spiritists to practice their religion.
Question 2
Section 36(1) of the Constitution provides that the rights in the Bill of Rights may be limited
only in terms of law of general application to the extent that the limitation is reasonable, just and
fair in an open and democratic society based on human dignity, equality and freedom taking into
account all relevant factors.6
The Drug Act is an existing law of general application that regulates the criminalization of the
possession, manufacture, distribution or dispensation of Schedule 8 substances thereby
prohibiting them. This law applies to the general public and targets those who offend its
provisions. It was passed by parliament.
Regarding the nature of the right, the right to freedom of religion is protected because certain
fundamental values if the Constitution warrant its protection. The right to believe or not to
believe or to act or not to act upon ones belief is linked to human dignity. The freedom of
religion goes to the heart of what it means to be human, a sense of identity. To many believers
their relationship with God is central to them. It also defines for believers how they view the
world, a standard by which they distinguish what is right and what is wrong. Therefore freedom
of religion is important for our constitutional democracy founded of freedom, equality and
4MEC for Education: Kwazulu-Natal and Others v Pillay 2008 (1) SA 474 (CC ) at para 60-66, 87

5MEC for Education: Kwazulu-Natal and Others v Pillay 2008 (1) SA 474 (CC) at para 67,87

6Constitution 1996, s 36(1)

dignity. It is central to human identity and dignity and self-worth and it signals and constitutional
concern for religious diversity.7
Regarding the purpose of the limitation, the prohibition of the use of Peyote and other drugs
listed in Schedule 8 is aimed at preventing the use of harmful dependence-producing drugs to
protect the health and safety of Spiritist members, effectively wage war on drugs and comply
with international law obligations. Drug abuse is a prominent societal issue harming those who
abuse them and therefore society is apparent from the Medical evidence that suggests that Peyote
is harmful. Although the effects of Peyote are cumulative and dose-related, excessive use may
result in a psychotic state. Therefore the Government purpose of the limitation is to discourage
and prohibit the use of the Schedule 8 substances.
Regarding the extent of the limitation, the limitation prohibition goes too far, bringing within its
scope possession or use required by the Spiritist religion. It does not distinguish between the use
of Peyote for religious purposes and drug abuse as a result presents people like Mr Hale as
criminals. It degrades and devalues the followers of the Spiritist religion. It is an invasion of their
dignity. It says that their religion is not worthy of protection thereby violating their human
dignity. As a result Mr Hale cannot without constraint demonstrate his religious belief. The
limitation is overboard indeed.
Then regarding whether there is a rationale connection between the extent of the limitation and
the right, yes the Government seeks to employ an effective mechanism to address a major
societal issue such as drug abuse but the Act does not distinguish between the use of Peyote for
religious purposes and that for drug-abuse. In doing so, its consequences extend beyond the
scope of this purpose however the fact remains that there is a rationale connection between the
purpose of the government and the limitation.
Lastly and most importantly, it is to consider whether the legitimate government purpose served
by the prohibition could be achieved by less restrictive means without limiting/ violating Mr
Hales right. On the face of the matter there is, this would be the exemption of the people of the
Spiritist religion from the Drugs Act. In the case of Mr Hale, the Spiritists use the drug in the
form of a tea and not directly as an illegal substance which reasonably would cause more harm
and according to medical evidence on record it is clear that there is a level of consumption that is
7Christian Education South Africa v Minister of Education 2000 (4) SA 757; 2000 (10) BCLR 1051 at para 36

safe in that it is unlikely to pose any risk of harm such as a few cups of Roibon. They use it
during religious ceremonies inside a Spiritist church and under the supervision of a priest. The
The Spiritists do regulate the use and possession of Roibon to the extent that ingestion of the tea
outside the sacramental context is considered blasphemous and therefore amongst those who
truly and strictly observe this religious practice, using Roibon outside the scope of religion
would be rare. The government has not provided any legitimate reason as to why control of
religious exemption would be impossible but has merely related the fear that the public will
misconstrue the governments true attitude about the drugs and their use. As a result the
limitation remains inadequately justified and the court must find therefore that the control and
regulation as well as the administration of the exemption is not impossible.

BIBLIOGRAPHY
Cases
Christian Education South Africa v Minister of Education 2000 (4) SA 757; 2000 (10) BCLR
1051
MEC for Education: Kwazulu-Natal and Others v Pillay 2008 (1) SA 474 (CC); 2008 (2) BCLR
99 (CC)
Prince v President of the Law Society of the Cape of Good Hope 2002 (2) SA 794; 2002 (3)
BCLR 231
S v Lawrence 1997 (10) BCLR 1348 ; 1997 (4) SA 1176
Statues
Constitution, 1996

ANDILE MIYA
3348157
FRIDAY PERIOD 1
CINDY- LEE BEKEER
2014/09/11
CONSTITUTIONAL LAW ASSIGNMENT 2