LJU4802 ASSIGNMENT 2 ANSWERS OF SEMESTER 2 OF 2024
, QUESTION1
Philosophical Approaches in Prince v President of the Law Society of the Cape
of Good Hope (2002)
Introduction
The landmark case of Prince v President of the Law Society of the Cape of Good
Hope 2002 (2) SA 794 (CC) serves as a pivotal exploration of the tension between
individual rights and state interests within South African constitutional law. The case
primarily revolves around the constitutional right to freedom of religion, as protected
by Section 15 of the Constitution of South Africa, and the extent to which the state
can justifiably limit this right in the interest of public health and safety.
The Majority Approach- Legal Positivism and Public Interest
The majority judgment in the Prince case, delivered by Ngcobo J, embodies a legal
positivist approach. Legal positivism is characterized by a focus on the letter of the
law and a strict interpretation of legal texts without necessarily considering the
broader moral implications. In this context, the majority held that while the right to
freedom of religion is fundamental, it is not absolute. The state has a legitimate
interest in regulating activities that could harm public health and safety, including the
use of cannabis, which is classified as a prohibited substance under the Drugs and
Drug Trafficking Act 140 of 1992 and the Medicines and Related Substances Control
Act 101 of 1965.
The majority argued that the prohibition on the use of cannabis, even for religious
purposes, was justified under Section 36 of the Constitution, which allows for the
limitation of rights in a manner that is reasonable and justifiable in an open and
democratic society. The court emphasized the difficulty in enforcing an exemption for
religious use, as it would challenge the ability of law enforcement to effectively
regulate cannabis use and could potentially open the floodgates for widespread
abuse. The state’s interest in protecting public health and preventing drug abuse was
deemed a "pressing social purpose" that outweighed the individual’s right to religious
freedom in this context.
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