The Constitution, Judiciary and Rule of Law are a fleeting illusion

By Ras. Gareth Prince

In relation to the then apartheid government and judiciary, Prof Albie Sachs wrote in 1972, “…. instead of investing their office with the prestige that comes from the pursuit of justice; they used the prestige of their office for the pursuit of the manifestly unjust”. 50 years later, can we truly say our courts have changed that legacy? If you ask the poor and needy, the answer is a resounding no.

Whereas, I do not believe that the opinion piece(s) from Minister Lindiwe Sisulu comes from a place of genuine concern for the interest of indigenous First Nation people, but rather from a place of expediency and unbridled ambition, it does not detract from the basic premise that she is right in stating that the Constitution, Rule of Law and the Judiciary do not serve the interest of the indigenous people of Mzansi, nor the vulnerable or marginalized in our society.

In his response, Acting Chief Justice, Raymond Zondo, said Minister Sisulu did not refer to a single judgment to back up or substantiate her views. Allow me to refer to two recent judgments that vividly demonstrate the validity and truthfulness of the views around the Constitution, Rule of Law and the Judiciary. I’m referring to the judgments of Minister of Justice and Constitutional Development and Others v Prince & Others 2018 ZACC 30 and Residents of Industry House, 5 Davies Street, New Doornfontein, Johannesburg and Others v Minister of Police and others 2021 ZACC 37.

In both these cases the Constitutional Court did exactly what they said in Dawood v Minister of Home Affairs and Others 2000 ZACC 8, as well as Gaertner v Min of Finance 2013 ZACC 38, and EFF v Min of Justice 2020 ZACC 25, the Legislature or the Courts cannot do; which is to accept that just because the Constitution obliges state officials to obey the law, that therefore they will, irrespective of the unfettered nature of their discretionary power. The South African Police Service (SAPS) arrest record on drug related arrests certainly shows differently.

The 2018 dagga judgment in Prince 3, in which the court finally acknowledged the right of adult South African citizens to use, grow and possess dagga, is the clearest example of a Constitution, Judiciary and Court judgments that are far removed from the people, and which still endorse foreign thinking around dagga and the dagga culture in South Africa.

Dagga is rooted in the soil, culture and customs of South Africans and only became a “problem” a 100 years ago, for subjective, colonialist and racist reasons, yet this court still labelled trading in dagga a serious problem and social evil. The Constitutional Court dagga judgment contains no reference or evaluation of the customary, historical, cultural and socio-economic nature of dagga; they merely analysed it through foreign spectacles and jurisdictions.

Whereas the causal link between trading in dagga and crime or harm has never been proved, objectively or substantively, in any South African Court of Law, and disproved in foreign jurisdictions, the Constitutional Court still endorsed this racist notion uncritically, despite the varied uncontested expert evidence before the court, pointing in the opposite direction.

The existential reality faced by millions of South Africans were ignored by the Apex Court. Millions cannot grow dagga for themselves as a result of poverty and apartheid spatial planning. They don’t have access to space, seeds, clones or mother plants. Millions of backyard dwellers and people staying in squatter camps are therefore denied their right to engage in a cultural and customary practice. The ConCourt judgment did not mention or catered for this class of people and left them to the police, to criminalize.

The ConCourt handed down a judgment guaranteeing a right to use, grow and possess dagga, without ordering a moratorium on arrest, or directing the state to ensure that citizens have legal outlets where they could legitimately source seeds or dry product. The ConCourt criticized the High Court judgment for suggesting that selling of dagga should be allowed and specifically spoke against decriminalizing selling dagga, but said nothing about ensuring people can exercise their rights to use.
There can be no usage, growth or possession of dagga without buying or selling. In reality this means the judgment changed nothing for the dagga community. The police still have the right to arrest us for buying or selling dagga. SAPS arrest figures for the past 4 years show that they refuse to exercise their discretion in favour of freedom and human dignity. Their own stats reveal over 850 000 arrests since the declaration of invalidity in 2017. SAPS have arrested 2.3 million people on drug related charges in the past 10 years according to their own statistics (see SAPS Stats for 2019-2020). How can any true constitutional democracy that serves the people be ok with these numbers?

The Constitutional Court did not circumscribe the wide arrest powers of the Police, or circumscribe the definition of trading or dealing in dagga. They left that to Parliament, who blatantly refused to do it, because the Court didn’t tell them to. The Constitutional Court entrusted the dignity, safety and security of the dagga community to the goodwill of Parliament and the Police, without ensuring that the Police have narrow and circumscribed powers of arrest, and that Parliament properly comprehend what they must do.

The uncontested expert evidence before the Constitutional Court pointed out the bias of the Police and their perverse incentive to arrest, yet the Court naively trusted the Police to perform their duties constitutionally. This provides cold comfort to our community which still haven’t seen justice after years of persecution by this outdated colonialist legal system. It also proves the exact points that Minister Lindiwe Sisulu raised, that the Judiciary and the Constitution do not really serve the ordinary citizens.

Instead of Parliament ensuring that citizens can purchase dagga legally and working with previously disadvantaged communities, Parliament encourages the continued arrest of citizens, whilst giving us a bill that says nothing about how citizens can legally exercise their rights. They did this because the Apex Court in their judgment, endorsed these sentiments, by omission. The Constitutional Court, Parliament and the Police seem to be playing ping-pong with vulnerable and marginalised people’s lives and livelihoods. How is this the justice that Autshumato, Makana, Sobukwe and Biko struggled for?

In the Residents of Industry House case the applicants complained of the repetitive raids by the Police accompanied by other officials. The applicants pointed out that the raids were an occasion for state-sanctioned racism and xenophobia and the repeated humiliation of the poorest and most vulnerable members of our society.  Police discriminate against African people simply because they look “too dark”, they are “suspicious”. The RasTafari and dagga community face the same prejudice.

The mere fact that a statute strengthens crime prevention and assists the police in discharging its constitutional objectives is not sufficient to justify a limitation of rights; especially so egregious an infringement as was seen in this matter.

We are no longer a police state where law and order is elevated above respect for human rights. Sec 205 of the constitution, which oblige Police to prevent crime and maintain public order, is no more important than Sec 7(2) which oblige Police to respect, protect, promote and fulfil the rights of the poor and needy.

The majority opinion ignored the ease with which the rights of vulnerable people could be assailed by ill trained, biased and prejudiced police, and rather overemphasized the duty of the police to maintain order.

The majority apex court refused to declare Sec 13(7) of the SAPS act unconstitutional in its entirety and to confirm a final interdict against SAPS. Sec 13(7) allows the Police to cordon off a whole area for 24hrs and then to conduct searches at any time of day or night, without appropriate guidelines as to what police may, or may not do.

One minority voice, Victor AJ, held that what occurred was indicative of careless policing, characterised by short cut methods intended to achieve a fear-inducing impact.  This undermines the protection afforded by the Constitution, and thus the minority declared the whole section 13(7) unlawful.

The minority judgment accepted that the state power was deployed for an ulterior purpose, namely, “to systematically persecute the residents of a neighbourhood branded as “undesirable” by the respondents.  That such a manifest violation of rights can take place in the new dispensation gives rise to concerns that the Constitution does not mean much for those who, due to their race, gender, class, or other status, may be brutalised by the police with no fear of consequences.Mogoeng CJ in EFF, in an apparent swipe at his colleagues, and perhaps in reference to Prince 3, said, “Where there is a less restrictive means to avoid the gross invasion of a guaranteed right, then a limitation that needlessly strays beyond protected bounds must be arrested. It would be remiss of any court to shirk that responsibility, counting on the police and prosecutors to do what Parliament should have done but failed to, and what a court should be doing but chooses to pass the buck to the police and the prosecuting authority. For, it is crucial even as we interpret …….., never to lose sight of the all-important obligation imposed on us by section 39(2) of the Constitution to promote the spirit, purport and objects of the Bill of Rights”.

These two highlighted judgments, coupled with the dismal record the court have on socio-economic and land issues, are not a feather in the cap of our Apex Court. Moseneke DCJ, speaking in his 2012 Ruth First Memorial Lecture, said the Court “don’t choose its cases, cases choose them”. But the South African Constitutional Court has chosen to not to offer a valiant lance in defence of the poor and marginalized, when they had the chance to do so.

Government working with its indigenous people around the issue of dagga is one of the most viable, pragmatic and doable solutions to our socio-economic dilemma, but the ConCourt shirked from their responsibility to defend the poor and needy and timidly passed the buck to the Police and Parliament who blatantly refuse to comply with the law.

We need the apex court to fulfil their original role in our society, the protectors and protagonist of Justice. They are entrusted with the soul and conscience of this nation. We ask them to invest their office with the prestige that comes from the pursuit of Justice and to abandon the hydraulic conformity to Roman Dutch and English common law. We need to rekindle and elevate the Social Justice and Ubuntu ethos of indigenous South African customary law and thinking.

Ras. Garreth Prince is the Chairperson of the Cannabis Development Council of South Africa (CDCSA). He is also a qualified, though not admitted Legal Professional, declared not fit and proper to practice law in 1998 because of refusal to apologize for using and promoting dagga.