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184 Chapter 10
who might otherwise be sceptical of storytelling, not only have the
capacity to tell stories, but to do so to brilliant effect.
5.4.1 Prince
Consider the dissenting judgment of Justice Sachs in Prince. In Sachs
J’s view, the idea that the religious freedom of Rastafari must simply
give way to the state’s interest in law enforcement rests on what he
calls the ‘hydraulic insistence on conformity to majoritarian
standards’. 95 Justice Sachs challenges the supposed neutrality of this
dominant mindset by choosing a narrative perspective that differs
fundamentally from that of the majority. Instead of emphasising lawenforcement,
Sachs J tells us a bit about the history of the Rastafari,
the centrality of cannabis in their religion, the marginality of the
Rastafari in South African life, and their inability to exercise any
meaningful influence on the political process. By relocating the
limitations inquiry in the ‘lived and experienced’ reality of the
Rastafari, Sachs J’s story challenges dominant assumptions about the
alleged dangers that certain ‘controlled’ substances pose for the
common good of the commonweal. 96
The minority’s stated preference for crafting an exemption for
Rastafari ritual use of cannabis also dovetails rather neatly with our
description of shared constitutional interpretation. For while the
Court would, quite naturally, retain the power to set out very
generally normative guidelines for the religious use of cannabis by
Rastafari, it would remain up to the legislature, law enforcement
officials and representatives of the Rastafari community to work out
the details of an exemption that met the needs of all parties
concerned.
5.4.2 Jordan & Khosa
As one of the authors has noted elsewhere, 97 the Constitutional Court
in S v Jordan & Others falls into an ‘autonomy trap’ and that leads to
a failure in legal imagination that actually drives the South African
market in sexual slavery. In Jordan, the Constitutional Court rejected
equality, dignity, privacy and freedom of profession challenges to
those sections of the Sexual Offences Act that criminalise
95 Prince (n 7 above) para 156.
96 n 7 above, para 151.
97
See S Woolman & M Bishop ‘State as pimp: Sexual slavery in South Africa’ (2006)
Development Southern Africa 385. See also S Woolman ‘Freedom of association’
in S Woolman et al (n 6 above) Chapter 44; S Woolman & M Bishop ‘Slavery
servitude and forced labour’ in S Woolman et al (n 6 above) Chapter 64; Woolman
(n 35 above).