T J SANDILE (27291073)
IURI 223 (Fundamental Rights)
Lecture: Mr J RantloDue Date: 10 October 2018
Lawyers may be smitten from the rolls of advocates or attorneys if they stop to be “fit and proper” persons. Admission to the profession of advocate is regulated by the Admission of Advocates Act (as amended). The Act prescribes in section three that Associate in Nursing mortal ought to be older than twenty one, be a “fit and proper” person and have the correct qualifications within the final instance it’s up to the court to choose if an individual is “fit and proper” to be allowed into the profession. The Act conjointly governs the institution of Law Societies. The Law Societies lay down binding rules for the members of the profession on their registers.
Chapter 2 of the Bill of Rights within the Constitution provides that everyone has the right to freedom of religion, belief and opinion and section 9 provided the equality clause which prohibits and inconsistency and discrimination which is unfair towards grounds such as the religion and section 31 protects the right of persons belonging to a religious community to practice their religion together with other members of that community and form voluntary religious associations.It is generally accepted that rights enshrined in a bill of rights are limitable. It is, however, an open question whether it is possible to limit all such rights. A court of law interpreting chapter 3 is, first of all, required to “promote the values which underlie an open and democratic society based on freedom and equality” (section 35(1)). The right to religious freedom, for instance, entails religious practices which are surely susceptible to circumscription, but the right to freedom of conscience or belief, which is not so concretely ‘exercised’, lacks these readily circumscribable manifestations.
Section 36 of the Constitution states 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 and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factor:
The nature of the right, is a factor that weighs up the harm done by a law and the infringement of a fundamental right against the benefits that the law seeks to achieve, the reasons for the law or purpose. In the case above the law is infringing against the right of freedom of religion as the Mr. Herb can’t practice what he believes.
Importance of the limitation, this factor weighs up the importance and purpose of the right. In the case above the limitation of this right is based on the protection of the community and public welfare.
Nature and extent of the limitation, this factor involves how the limitation will be limit the right and its seriousness determined by sec 1 (d). in the case above the limitation is very serious as its incriminating to breach the law stated by the law of general application.
Relation between limitation and purpose this factor determines whether the seriousness of the limitation outweighs the right and prevents the justifying of thoughtless limitation and in the case above, the law is to prevent any violation of the substance and any dangers contained by it.
Less relative means to achieve the purpose, this factor is there to assure that all possibilities have been investigated and this was one that dealt with the issue much better. And in the case above the limitation was actually the law is there to impose a positive outset for every person in general.
Section 33(1) and 36 are general circumscription clauses providing for the limitation of all the rights entrenched in chapter 3 through the law of general application and therefore also the religious rights entrenched in section 14. The limitation of religious rights could prove to be more problematic than may appear at first sight.
According to Rastafari belief, which rejects all materialism and oppression, cannabis heightens consciousness, increases pleasure in life, relaxes, and gets rid of negative energies. Rastafarians believe that the plant will bring man closer to their creator, Jah. Even though the main defense for the use of cannabis is that medical cannabis has been prescribed for AIDS and cancer patients suffering from nausea and poor appetite because of their treatments even though some studies also hold some repercussions regarding this findings and it was concluded that those that need medical cannabis for their health will need to attain a prescription from a medical expert., this has not given cannabis weight to be re-established as a legal substance.
There are countless reason why a lot of experts have maintained marijuana incriminating, including reasons such as the fact that it alters human behavior causing unconsciousness as people get intoxicated from its consumption, its perceived as addictive as other illegal substances and it has historically been linked with narcotics such as heroin as it’s a abnormal recreation drug. Therefore dealing, using or possessing such a substance may be a criminal offence even though the use takes place in private and it’s a crime against the community and public welfare according to sec 4 of the Drugs and Drug Trafficking Act which provides that no person shall use or have in possession (a)any dependence producing substance or (b)any dangerous dependence producing substance or any undesirable dependence producing substance.
In Prince v President, Cape Law Society and Others Mr. Prince, a Rastafarian, who had two previous convictions for the possession of cannabis (commonly known as dagga), declared that he would continue to break the law due to his religious beliefs. It was found that it would not be “fit and proper” to allow him to register for his articles as an attorney as he would constantly be breaking the law and his behavior would bring the profession into disrepute. In this case though, there are indications in the Constitutional Court judgement that the position taken by the Cape High Court and the Supreme Court of Appeal on this issue does not find unqualified support among South Africa’s senior judges. In all three of the judgements delivered in the Prince case the possibility is raised that Prince may still be a “fit and proper” person to practice law in spite of his criminal convictions and continued defiance of the law. Sachs J, for example, remarked that according to his understanding of the principles of an open democracy, Prince should not be forced to make a choice between his conscience and his career.
Therefore Mr. Herb should take into account that even fundamental rights have limitations and all that is for the consistency of the Constitution and protection of the public welfare as well therefor there are legislations as mentioned above that incriminate some practices such as being in possession of dagga even in private use. Its therefore a requirement for a fit and proper lawyer to adhere to the requirements placed before them and one being that one shouldn’t be involved in any criminal activities or offences and since he has the intention to use dagga in future he is inconsistent with that rule, regardless of any reasoning the legislation has provided enough stance to place their verdict which is justifiable and reasonable as it benefits the state and the society at large even though Mr. Herb feels like it disables him to be himself and practice what he believes in.
According to the limitation test, it has been shown that the law in question serves a constitutionally acceptable purpose and that there is sufficient proportionally between harm done by law and the benefit it is designed to achieve. And in conclusion we can say that rights are not absolute, yet they may be infringed but only when the infringement is for a compellingly good reason but the infringement shouldn’t impose costs that are disproportionate to the benefits that it obtains which might be in a case a law infringes rights that are of great importance in the constitutional sphere in the name of achieving benefits. A good reason is that the infringement serves a purpose that is considered legitimate by all reasonable citizens in a constitutional democracy that values human dignity, equality and freedom.
The impression is formed that as a result of the smoking of wild dagga may be a crime, Mr. Herb was thought-about as not being “fit and proper” for the profession, however what if someone practiced spousal relationship or fornication or were hooked in to gambling, that isn’t criminalized? Would such someone be “fit and proper”? In alternative words the question arises if there’s a distinction between the virtuously wrong and therefore the reprehensively wrong? The judges of the Constitutional Court incomprehensible a chance to deal with the notion of morality during a dynamic society. Their views were therefore once more positive. They targeted solely on the very fact that a law had been broken. it’s been typically accepted that totally completely different teams of the South African population have different traditions associated attitudes towards the employment of wild dagga even the Constitutional Court created respect to the very fact that cannabis has been consumed for many years each as an intoxicant and within the belief that it’s medical properties.
My personal view and stance is that the criminalization of cultivation of cannabis for private use as dealing is subject to criticism. It imposes harsh sentences that may be too severe in the context of harm that is posed by the conduct. Persons in this category may be liable for possessions, but they should escape liability for being dealers. It should be proven that the accused had the intention of dealing in dagga before he can be liable as a dealer. There certainly seem to be some social, legal and even political momentum towards the decriminalization of the use of dagga.
Unfair discrimination has formed the South African education system, manufacturing difference in our collages and society. Unfair discrimination on the idea of gender, religion, language, sexual orientation and incapacity amongst other several alternative grounds, has been a counting feature of education in African nation, typically these varieties of unfair discrimination have combined, leading to deeper inequalities.
Section 9 of the Constitution guarantees the right to equality and it states that:
Everyone is equal before the law and has the right to equal protection and benefit of the law.
Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed Chapter 2: Bill of Rights 6 to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, color, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.
Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair
And this right has three important parts.First, a right to equality before the law, and equal protection and benefit of the law (Section 9(1)). Second, permission for the state to take positive measures to protect and advance groups that have been disadvantaged by unfair discrimination (Section 9(2)). Third, a prohibition on unfair discrimination by the state (Section 9(3)) and by private individuals (Section 9(4)).
The most important statute for our purposes is the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act). The Equality Act prohibits unfair discrimination by the state and every one people. It conjointly prohibits connected wrongs, like hate speech, harassment and therefore the publication of below the belt discriminatory material. The Equality Act has created a network of Equality Courts round the country. These courts square measure meant to produce a fast, informal and effective method of resolution unfair discrimination disputes. As a result, the Equality Act is one among the first sources of rights and remedies once an individual experiences unfair discrimination. There is a particular distinction formal equality that could be a belief that, for fairness, individuals should be systematically or equally treated in the slightest degree times and substantive equality which works on the far side the fundamentals of recognizing the equality of everybody and identifies variations among teams of individuals with the long goal of larger understanding.
In the case of President of the Republic of South Africa and Another v Hugo, the Presidential Act 17 of 1994 granting a special remission of sentences to certain categories of prisoners including the category comprised of “all mothers in prison on 10 May 1994 with minor children under the age of 12 years” was passed and the Act held not to discriminate against imprisoned fathers of young children –yet it was denying an opportunity to such male prisoners which it afforded to female prisoners and thus discriminating on the basis of gender. And it was found that there is no such an act as the Presidential Act , Act 17 of 1994 is the Correctional Service Amendment Act therefore its not an act but a presidential order to reduce sentences of specific group of people and in terms of the Interim Constitution.
The purpose of right to equality is of the prohibition of unfair discrimination, as it is not merely to avoid discrimination against members of historically disadvantaged groups but to achieve a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups and to insist upon identical treatment in all circumstances prior to the achievement of that goal would frustrate the endeavor to reach it. Its scope is that this must be recognized in determining whether in any particular circumstances discrimination is unfair and in each instance it is necessary to examine the impact of the discriminatory action upon the particular people concerned to determine whether the overall impact is one which furthers the constitutional goal of equality or not. To determine whether that impact is unfair, it is necessary to look not only at the group which has been disadvantaged but also at the nature of the power in terms of which the discrimination was effected and the nature of the interests which have been affected by the discrimination.
For a better recap of the right we need to establish a standing for differentiation and discrimination as both are falsely regrouped. Differentiation is treating people in the same position differently, such as trying to put a previously disadvantaged person to the same position as an advantaged person to ensure equal outcomes which results in conduction a rational test which finds a rational connection between ensured outcomes and preciously disadvantages which should show equal reasons for differentiation and if there is no rational connections it infringes sec 9(1) as discrimination which is unfair discrimination is when it’s on the bases of sec 9(3) against the listed grounds and unlisted grounds which impact results in the dignity of a person being infringed upon constitutional value. Burden of proof should be that any discrimination listed under sec 9(3) is unfair unless established fair.
There is horizontal application of the right where a natural person can’t be discriminated against as well as juristic person and the vertical application is where the state can discriminate.
Kemp G Criminal Law in South Africa 2nd ed (Oxford University Press Cape Town 2015)
Currie I and De Waal J The Bill of Rights Handbook 6th ed (Juta and Company 2017)
President of the Republic of South Africa v Hugo 1997 4 SA 1 (CC)
Prince v President Cape Law Society and Others 2002 (2) SA 794 (CC)
Admission of Advocates Act 74 of 1964
Drugs and Drug Trafficking Act 140 of 1992
The Law of Societies
The Constitution of South Africa 1996
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000
The Victorian Charter of Human Rights and Responsibilities Act: Australia’s First State Charter of Human Rights http://www.gtcentre.unsw.edu.au/node/153