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44
Prince v South Africa
(2007) AHRLR 40 (HRC 2007)
religious purposes. The state party submits that the reason why the
prohibition of possession and use of cannabis remains in force is the
result of the author’s misguided approach in the domestic courts.
4.2. The state party contends that the communication is
inadmissible ratione temporis. The Optional Protocol entered into
force for the state party on 28 November 2002. The facts and
applications in domestic courts were completed before the entry into
force of the Optional Protocol, with the Constitutional Court
delivering its final judgment on 25 January 2002. On the author’s
argument that the violation has continuous effects because the laws
still prohibit the possession and use of cannabis, the state party
considers it to be invalid, because the author did not seek to have the
prohibition laws declared unconstitutional and invalid. He cannot
therefore claim that the fact that these laws still apply amounts to a
continuous violation. The state party refers to the Committee’s
jurisprudence 11 according to which continuous effects can be seen as
an affirmation of previous alleged violations. It submits that it has not
affirmed the concerned provisions of the relevant laws, as they
remain unchanged.
4.3. The state party recalls that the same facts were already
examined by the African Commission, which found no violation of the
African Charter on Human and Peoples’ Rights. The state party
suggests that the Committee should broaden its literal interpretation
of the concept of ‘being examined’ to address policy issues such as
the phenomenon of ‘appeal’ from one body to another, as the risk of
‘human rights forum shopping’ 12 is considerable. It considers that the
Committee, in dealing with the present case, has the opportunity to
give clear guidance, in an innovative and creative manner, on how it
intends to contribute to the maintenance of a credible and respected
unified international human rights system.
4.4. On 24 November 2006, the state party commented on the
merits. It argues that while its legislation indeed results in a
limitation of the right to freedom of religion of Rastafarians, such
limitation is reasonable and justifiable in terms of the limitation
clause contained in article 18(3). Furthermore, it is proportionate to
and necessary for the achievement of the legitimate aims provided
for in that article, namely the protection of public safety, order,
health, morals or the fundamental rights and freedoms of others. The
Cape High Court, the Supreme Court and the Constitutional Court all
found that while the legislation the author complained about limited
11 Communication 520/1992, Könye and Könye v Hungary, decision on admissibility
of 7 April 1994, para 6.4; communication 422/1990, Aduayoum et al v Togo, views
adopted on 12 July 1996, para 6.2.
12 The state party refers to an article by JS Davidson, ‘The procedure and practice of
the Human Rights Committee under the first OP to the ICCPR’ (1991) 4 Canterbury
Law Review 337 342, which is annexed to its submissions.
African Human Rights Law Reports