Intro to law cases Flashcards
1
Q
What are the facts in the Christian Education South Africa v Minister of Education case?
A
- The South African Schools Act in 1997 section 10 prohibits corporal punishment in school.
- The appellant is several Christian schools which state that the new law that stops the use of corporal punishment invades their parental, communal and individual rights to practice religion. While the Act was being processed the school tried to get their schools exempted, but failed.
- The High Court dismissed the case and therefore an appeal was set before the Constitutional Court.
- The Department of Education on the respondent’s behalf argued that corporal punishment is contrary to the Bill of Rights
- There was no curtar ad liem appointed which meant the children’s voices were not heard, this would not have made the argument more decisive but would have enriched dialogue
2
Q
What is the issue in the Christian Education South Africa v Minister of Education case?
A
Can the impact of the prohibition of the religious beliefs that violated the rights of parents who because of religious principles consented to corporal punishment and practices be justified under the limitations test of section 36?
3
Q
What are the principles in the Christian Education South Africa v Minister of Education case?
A
- The Constitutional rights sections 14, 15, 30 and 31 by the appellants
- Section 9, 10 and 12 by the respondents
section 31(2) was highlighted - Section 12 of the Constitution adds to the right to be protected by the state with section 7(2) stating the state needs to fulfil these rights
- The United Nations Convention on the Rights of the Child
4
Q
What is the application in the Christian Education South Africa v Minister of Education case?
A
- Children are protected by sections 10, 12 and 28 however, telling parents how to bring up and discipline their children could negatively affect their dignity.
- Section 31(2) ensures that the idea of rights and how they are practiced in communities cannot be used to shield practices that prohibit other rights. Religion is not just a part of private life but active public life contemplated by the Constitution.
-The Act stops corporal punishment at schools it doesn’t stop parents from choosing how to discipline their children at home
5
Q
What is the conclusion in the Christian Education South Africa v Minister of Education case?
A
- The state ratification of the United Nations Convention on the Rights of the Child means the state has to take measures to protect the child from all injury, abuse or violence.
- The Act was part of a plan to bring unity and uniformity to the educational standards of the country, it was part of a radical move to prohibit state-sanctioned physical force as a method of punishment and to break from the authoritarian past.
- The case was ruled in favour of upholding the law with no order of cost was asked for.
6
Q
What are the facts in the Prince v President of Law Society of Cape case?
A
- The appellant Mr Prince wishes to become an attorney, he has satisfied all the requirements except for a period of community service, which he applied to get from the Law Society of Cape of Good Hope the second respondent who declined his registration. As he disclosed he has two previous convictions of cannabis and that he will continue to smoke as it’s in line with his religion.
- Cannabis is a dependence-producing drug which is prohibited by law and is consumed individually as a religious experience to get closer to knowing their god Jah.
- The High Court and the Supreme Court of appeal dismissed the constitutional challenge Hence the appeal.
7
Q
What are the Issues in the Prince v President of Law Society of Cape case?
A
Is the prohibition of cannabis use or possession constitutionally valid when it’s use is inspired by religion?
8
Q
What are the principles in the Prince v President of Law Society of Cape case?
A
- The challenge is based on section 4(b) of Drugs Act 149 of 1992 and section 22A (10) of the Medicines Act
- The appellant claims the prohibition infringes on his rights to religion, dignity, pursue profession of his choice and to not be subject to unfair discrimination
- Cannabis is listed in Part III of schedule 2 to the Drugs Act as an undesirable dependence drug
- The rights to freedom of religion is contained in section 15(1) and section 31(1)(a)
- The limitation on the constitutional rights must be justifiable in terms of section 36(1) of the Constitution
- International Single Convention on Narcotics Drugs, a person found in possession of narcotics is guilty of an offence whether they intended to use it or not
9
Q
What is the application in the Prince v President of Law Society of Cape case?
A
- It is not disputed that Rafistari is a religion protected by section 15 and 31 of the Constitution and their is no general dispute that cannabis is central in it’s religion.
- The harmful effects that the prohibition seeks to prevent is the psychological effects, however their is no indication of the amount that needs to be consumed to produce such harm.
- The respondents agree that the prohibition does limit the applicants rights however they hold that the limit is justifiable as it is essential to the war of drugs. The prohibition of cannabis limits the rights of Rafistari to practice their religion.
- There was no evidence that bathing or burning cannabis’s as incense is harmful, as smoking a few joints of cannabis poses no risk it is difficult to see how burning it at a few religious ceremonies is harmful.
- Any exemption if granted would have to be strictly controlled by the government.
- The religion doesn’t regulate the use of cannabis by it’s members and has no formal structure of supervision.
10
Q
What is the conclusion in the Prince v President of Law Society of Cape case?
A
- The minor judgement was that the appropriate remedy is to declare the provision invalid but not with immediate effect and that it should be done in a period of twelve months and that costs be paid by the ministry.
- The majority judgement is that there is no way that a law enforcement official can distinguish between cannabis use for religious reasons and recreation and their would be practical reasons for the enforcement of a permit system as Rastafari isn’t a very organised religion. The exemption cannot be made without impairing the state’s ability to enforce the legislation and therefore is reasonable and justifiable. The appeal is dismissed without order of cost.
11
Q
What are the facts in the Minister of Justice and constitutional development and v prince and others 2018?
A
- The order of invalidity made by the High court was in favour of three applicants with different cases.
- The applicants and plaintiffs before the High Court are the respondents in the current court while the respondents of the High Court are the applicants and are referred to collectively as the state.
- The defendants of the cases are the same Ministers of different government agencies
- Two members of the Cape Bar were amicus curiae at request of the court.
- Doctors for life in applied and were admitted as amicus curiae it is a defendant in the trial of the High Court called the Stobbs trial.
12
Q
What are the Issue in the Minister of Justice and constitutional development and v prince and others 2018?
A
Does the highlighted provisions limit the right to privacy as held by the High Court and is this limitation justifiable in terms of section 36 of the Constitution?
13
Q
What are the principles in the Minister of Justice and constitutional development and v prince and others 2018?
A
- According to section 172(2) an order of constitutional invalidity is only put into effect when confirmed by the constitution
- The provision in the Drugs Act Section 4(b) and 5(b) was declared invalid by the High Court as it prohibits the use of cannabis
- The provisions of the Medicine Act section 22A(9)(a)(I), 22A(2) and 22A(10) prohibits the use, supply, possession and manufacturing of cannabis
- Section 5(b) read with the definition of ‘deal in’ in the Drugs Act highlights the cultivation of drugs
- The right to privacy is found in section 14 of the Constitution
- In Khumalo case the judges stated their is a relationship between human dignity and the right to privacy
- The National Commission on Marijuana and Drug Abuse had recommended it no longer be an offence.
14
Q
What is the application in the Minister of Justice and constitutional development and v prince and others 2018?
A
- The South African Central Drug Authority stated that an assessment of the data in other countries shows that legal substances cause the most harm and that the immediate focus of the court should be decriminalisation.
- In the Prince II case it is shown there is no indication of the amount of cannabis that must be consumed to produce harm
- When determining if the cannabis someone has for reason other than personal consumption the state has to prove this beyond a reasonable doubt and the police officer can only arrest if their is enough suspicion that a person committed an offence according to section 40(1)(b) or(h) of the Criminal Procedure Act.
15
Q
What is the conclusion in the Minister of Justice and constitutional development and v prince and others 2018?
A
- Accordingly the evidence shows that the right to privacy entitles an adult person to use or cultivate or possess cannabis in private for personal consumption was correctly concluded by the High Court.
- As long as the possession of cannabis is in private and is for personal use it is protected by section 14 of the constitution. The order of invalidity operates prospectively.
- This brings into effect the 24 months suggested by the High Court to allow Parliament to correct the defects, the court should grant interim relief to ensure the applicants and others are granted effective relief.
- This should be done by reading in new sub para sections. Should parliament fail to amend the provisions within the time frame the items read in become permanent
- The state must pay all disbursement and expenses reasonably incurred in opposing the appeal and confirmatory proceedings.
