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  • Gareth Prince Case (Judge Davis Prohibits Prosecution For Canabis Use in Privacy - 3-30-2017, But Stayed The Order For Legislature To Act)

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    legalization of dagga in south africa

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    Gareth Prince Case (Judge Davis Prohibits Prosecution for Canabis Use in Privacy - 3-30-2017, But Stayed the Order for Legislature to Act)

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    6 vues66 pages

    Gareth Prince Case (Judge Davis Prohibits Prosecution For Canabis Use in Privacy - 3-30-2017, But Stayed The Order For Legislature To Act)

    Transféré par

    Woinlah Nui
    legalization of dagga in south africa

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    © All Rights Reserved
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    IN THE HIGH COURT OF SoUTH AFRICA (WESTERN CAPE DIVISION, CAPE TOWN) In the matter between: GARETH PRINCE and MINISTER OF JUSTICE AND CONSTITUTIONAL, DEVELOPMENT MINISTER OF POLICE MINISTER OF HEALTH MINISTER OF TRADE AND INDUSTRY DIRECTORATE OF PUBLIC PROSECUTIONS In the matter betwoen: JONATHAN DAVID RUBIN and NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS MINISTER OF JUSTICE AND CONSTITUTIONAL, DEVELOPMENT MINISTER OF HEALTH MINISTER OF SOCIAL DEVELOPMENT MINISTER OF INTERNATIONAL RELATIONS AND COOPERATION MINISTER OF TRADE AND INDUSTRY Reportable CASE No. 8760/2013, ‘Applicant First Respondent ‘Second Respondent ‘Third Respondent Fourth Respondent Fit Respondent CASE NO: 7295/2013, Plaintft First Defendant ‘Second Defendant. Third Defendant Fourth Defendant Fith Defendant ‘Sith Defendant MINISTER OF POLICE ‘Seventh Defendant and 4153/2012 In the matter betweer JEREMY DAVID ACTON First Plaintit RAS MENELEK BAREND WENTZEL, ‘Second Plaintift ‘CARO LEONA HENNEGIN “Third Plant and NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS First Defendant MINISTER OF JUSTICE AND CONSTITUTIONAL, DEVELOPMENT Second Defendant MINISTER OF HEALTH Third Defendant MINISTER OF SOCIAL DEVELOPMENT Fourth Defendant. MINISTER OF INTERNATIONAL RELATIONS AND COOPERATION Fifth Defendant MINISTER OF TRADE AND INDUSTRY ‘Sith Defendant MINISTER OF POLICE ‘Seventh Defendant JUDGMENT: 31 March 2017 DAVIS J Introduction [1] a constitutional democracy such as South Atria, ciitical task which Confronts courts is to demarcate the border between the terain in which disputes lie in the province of the courts and those controversies which are better loceted on @ terrain belonging to the legislature andlor the executive. This problem is ‘exacerbated by vitue of the fact that law inevitably underpins both the conduct of Individual cizens and ofthe State. All forms of human interaction, ether between individuals or between individuals inthe State, are sourced in a law which permits, prohibits or crcumscrbes the relevant conduct whether the latter 9¢ postive or negative. See in particular W N Hohfield Fundamental Legal Conceptions (1923) [2] This case focuses upon this precise question; namely the extent to which Jaws that prohibit the use of cannabis and the possession, purchase of cultivation thereof for personal consumption exclusively are valid, The laws which are the ‘subject of his dispute regulate the conduct of cannabis consumption even in the Privacy of a home. This case thus asks whether the invaldty ofthe relevant legislative tamework in terms of which these prohibitions are coucted should be determined by courts or left for futher legislative and/or executive consideration. {9] The relief which is sought is not particulary easy to divine because the ‘application brought before this Court has been made by individual applicants, whose applcation and papers reveal a lack of legal precision partculay in the framing of the relief sought. Italy Mr Acton brought an action, Mr Prince launched an application. Eventually the action brought by Mr Acton was ‘consolidated with Mr Prince's application. [4] Determined in the most coherent possible light, the dispute in terms of the relief sought can be divided into three categories, namely a) The applicants seek a declaration thatthe legislative provision against the se of cannabis and the possession, purchase and cultivation of cannabis for Personal or communal consumption is invalid. Accordingly the following provisions are impugned: ss 4 (b) and 5 (b) of the Drugs and Drug Trafficking Act 140 of 1982 (the Drags Act’ read with part 3 of Schedule 2 to the Drugs ‘Act insofar as it relates to “simple possession, cultivation, transportation and distribution of cannatis for personal communal consumption’; s 22 A (10) of the Medicines and Related Substances Control Act 101 of 1965 (‘the Medicines Act’) read with Schedule 6 (which should actually be Schedule 7) of the Medicines Act insofar as it relates to consumption of cannabis and; the legislative provision against the possession and use of cannabis by adult. [Mr Acton also seeks @ right to use cannabis for various other purposes including medicinal, economic, transportation and trade. | should note that this prayer is framed in somewhat general terms, particularly in Mr Acton's particulars of claim which do not refer to any particular statutory provision, However the legislative target of applicants is clear from the papers. particulary Mr Prince's notice of maton. ) Applicants seek a declaration of invalidity of the following provision, references to cannabis in $ 21 of the Drugs Act which contains presumptions relating to the dealing in cannabis. "This section provides as follows: (1) fin tne prosecution of any person fran oflencerelered to- {a} insacton 13 () tls proved tat he soos. (Was fund in poseasson of dagga exceeding 115 rams; (i) was found im postesson lo of on ny school grounds or wihin a distance of 100 meres ftom the cartes of such schoo! grounds of any dangerous dependence Producing substance, or (iy was founa in possession of any undesirable dependence producing substance Other tan dag5a It sal be presumed, url the contrary is proved, that the accused deat in such dong ‘rsubeance (©) in section 13( tis proved {tat cagga pants 9 the existence of which plants the accused was eware or cold reasonabie be egecied to Nave baen aware, were fund on © perusr oy of cutvated and no It should be noted that s 21 (1) (a) () of the Drugs Act has been declared Unconstitutional. See S v Bhulwani, $ v Gwadiso 1996 (1) SA 388 (CC). Applicants also seek a declaration of invalcty of s 40(1)(h) of the Criminal Procedure Act §1 of (1977) (‘the CPA’) insofar as the latter refers tc cannabis ‘Section 40 (1) (h) of the CPA empowers @ peace officer without a warrant to. arrest any person who is reasonably suspected of having committed an offence lnder any law and governing the making, supply, possession or conveyance of cannabis, ©) The applicants seek role that, inthe event that a declaration of rvalty is suspended, his court should make an order which would operate during the riod of suspension preventing the arrest, detention end prosecuon for use ‘of, possession, cultivation and the transportation of small amounts of cannabis intended for personal use and a stay of all pending prosecutions and release from custody of persons who are in detention pursuent to such proceedings (i tat the accused was on the paricular éay the owner, cccuper, manager or person In charge ofthe sad ane It shatlte presumed, unl he convary is proved, thatthe accused del in uch degga pions le) In secon 13(e) oF (its proved thatthe accused conveyed any drug, shal be ‘resumed, unl the convary proved, hat the accused dealt such ug {eecton 21(1(c) was daclered to be inconsistent with the inten Constuton and, ‘ecarangly of no lore an afect - GN R86 n GG 21266 of 16 June 2000) (8) In eactont3te) or () tis proves (at enycrug was found on ori any animal veil, vessel or erat and (i) tatthe accused was ono in charge oo hat he accompanies, any such lanmal voice, vessel or acraf 1 salle presumed, uilthe conrary i proved thatthe accused deat in such dug ‘Tho chronology of this application {5] Before proceeding to examine the Key provisions which applicants seek to have declared invalid, it is necessary to outline the manner in which these Proceedings before this cour were conducted. When this matter was intially brought belore this Cour, only the individual applicants appeared against an ‘experienced legal team representing respondents. As indicated, the relief as ‘sought by applicants was couched in imprecise terms, The papers, as fled, made it even more dificult for this cour, without a comprehensive legal debate from the ‘competing partes to determine an issue of considerable social importance. [5] Iwas apparent that, were the Court tobe placed inthe position to evaluate: allo the arguments both in favour and against the ele sought as | have set tou, further assistance was required. For this reason, the chaiperson of the Cape Bar Council was contacted by this Court witha request that members) ofthe Bar act as. ‘amicus curiae inthis matter to ensure that independent but comprehensive legal analysis might be provided to ensure that the dispute could be faixy and fully ventiaed before this Court. In addition, Professor Mark Shaw of the Centre of Criminology, Faculty of Law, University of Cape Town was contacted to provide an expert repat, given that a considerable amount of the documentation fled by applicants rroved to be of very litle assistance in the determination ofthis case, | shall etum later inthis judgment tothe legal admissibility ofthis evidence. Suffice to say at tis stage that much of the voluminous documentation frovided, in particular by Mr Acton, proved of litle value tothe determination of this application, 7] Professor Shaw and his colleagues fled an affidavit, to which | shall refer presently. A further opporunty was then glven to respondents to fle further ‘expert repots that they deemed necessary in order to respond to Professor Shaw etal, This was also designed to provide them with an opportunity to address what the amicus curiae contended were shortcomings in thelr expert evidence Respondents filed further affidavits the contents of which were produced, 1 shall refer presently. It was on this basis thatthe case was finally argued before tis Court, {8} The Court should record is considerable deb of gratitude to Mr Roux, Mr PPaschke and Ms Foster who appeared as amici curiae atthe request to the Court and whose meticulous research and argument proved to be extremely helpul Similar, this Court is indebted to Professor Mark Shaw, Dr Simon Howell, Dr ‘Andrew Faull and Anine Kriegler who by way of an afdavit produced a report for this Court entitled “Balancing Harms in Cannabis policy for South Altea” ‘The legislative framework [8] The key sections which are the subject of his dapute are sections 4 ) and 5 () of the Drugs Act and s 22A ofthe Medicines Act, Section 4 (b) of he Drugs ‘Act proves thus No person shalluse or have ais possession (©) ony dangerous dependence-poducing substance or any undesirable depensence-proccing substance, ues (0) he’s patient who has acquired or bought any such substance- ® w ww) (2a) from @ mecical practioner, dentist oF practioner acing in his professional capacty and in accordance withthe requirements of the Medicines Actor any regulation made thereunder, or (20) from @ pharmacist in tems ofan oral intact oF a peseiton in ‘tng of such medial practioner, dents or prcttioner, ‘and uses that substance for mesicnal purposes under the cae or reatment othe said meta practioner, dentist or practioner he as acquired or bought any such substance for medicinal puposes- (22) trom a mescal practioner, veterinarian, dentist or practioner acting in his professional capacity and in accordance witht requirements ofthe Medicines Actor any regulation made thereunder; (6) from a pharmacists in terms of an oral instucton or a prescription in wring of such medical practioner, veterinarian, deniet or practitioner, or (C2) ftom a veterinary assistant oF @ veterinary nurse in terms of 2 reserption in wring of such veterinarian Wi the intent o administer that substance to paint or animal under the ‘care or treatment of the said medical practioner, veterinarian, dentist or practioner he ie the DirectorGeneral: Weltare who has acquired or bought any such substance in accordance withthe requirement ofthe Medicines Act or any ‘egutation made thereunder he, she or itis a patient, medical practioner, veterinarian, dent, practioner, nurse, miwe, nussing assistant, shammacst veterinary assistant, veterinary nurse, manufacturer of, of wholesale dealer in, pharmaceutical products, impertar or exporter, o any otter person contemplated inthe Medicines Act or any reguiaion made thereunder, who oF which has acquired, bought, imported, culvated, colected or ‘manufactured, o uses ors in possession of, of intends to administer, supoy, sel, transmit or export ary such substance in accordance with the requirements or conditions ofthe sai Act rreguton, or any permit iesued to him, her ort under the said Actor eguation (he is an empioyee of a pharmacist, manufacturer of, oF wholesale dealer in, pharmaceutical products, imported or exported who has acquired, bought. imported, cutvated, collected or manufactured, oF uses ors in possession for intends to supply, sl, transmit or export any such substance inthe course of his employment and in sccordance with the requirements 0 conditions ofthe Medicines Actor any regulation made thereunder, o any permit sued fo such pharmacists, manufacturer of, or wholesale deals i, Phamaceutcal products, importer er exporter under the said Act or regulation, or (7) he has etherwise come into possession of any such substance in lawtl Section § (bj provides as fllows: "No person shal dea in (0) ary dangerous cependence-producing substance or any undesirable dependence producing substance, ules ()_hehes acquire or bought any such substance fe medicinal purposes: (@2) fom a metical practioner, veterinarian, dentist or practioner ‘cing in his professional capacity and in accordance vith the requrements of the Medicines Act or any regulation made thereunder; 10 (00) from a pharmacist in terms ofan oral instuction oa pression in wring of such medical practioner, veternarn, dentst or practioner or (c®) from a vetednary assistant oF veterinary nurse in tems of @ preserptionn wring of such veterinarian, and administers that substance to a patent of animal under the care or treatment of the said mecca practioner, veterinarian, dent or practioner (i) he i the Diectr-Generat: Welfare who acquires, buys or als any such substance in accordance withthe requirements ofthe Medicines Act or any regulation made thereunder (i) he, she orits @ medical practioner, veternaran, dent, practioner, nurse, iidwie, pursing assistant, pharmacist, veterinary assistant, veterinary nurse, manufacturer of, oF wholesale dealer in, pharmaceutical products, porter ‘or exporter, or any other person contemplated in the Mediines Act or any regulation made thereunder, who or which prescribes, admiristers, acquires, buys, tranships. imports, cutvates, collects, manufactures, suppies, sel, transmits or exports any such substance In accordance with the requirements or coalitions ofthe said Act or regulation or any peri issued tom, her ort under the said Act or regulation; or (() he's an employee ofa pharmacksts, manufacture of, or whelesale desler i, ‘Pharmaceutical products, importer or exporter who acquires, buys, ranships, imports, cultivates, collects, manufactures, supplies, sels, transmits or exports any such substance in the course of his employment and in ocordence withthe requirements or constons ofthe Medtnes Act or any regulation made thereunder, or any permit issued to such pharmacist, manufacturer of, oF wholesale dealer in, pharmaceutical products, importer or exporter under the ead Actor Regulation” " {10} Connobis is listed under Schedule 7 of the Medicines Contto! Counc Schedules. Section 22 A (8) a) () of the Medizines Act probibits the acquisition, Use, possession, manufacture or supply of cannabis, ‘Subsection (10) provides an overriding prohibition on the sale or administration of cannabis other than for ‘medicinal business. ‘The applicants cause of action [11] Reflective of the imprecision of applicants’ papers, to which | have already made reference, applicants invoked a veritable constitutional laundry ist to argue thatthe criminal prohibition of the use and possession of cannabis in their own homes and “propery designated places” was unconstitutional. in particular, they contended that, pursusnt tothe impugned legislation, fundemental rights such as, equality dignity and freedom of religion were breached. However, the core of tis case and thus the main challenge against the legislation, to which | have made Feference, Is to locete inthe right to privacy. A further argument by applicants was then raised thet the distinction between cannabis and other harmful substances, ‘such as alcohol and tobacco is irational and hence the kmitation of the right to Privacy was unjustifiable in terms of s 96(1) of the Republic of South Africa Constitution Act 108 of 1996 (‘the Constitution’), So much is clear from the founding affidavit deposed to by Mr Prince (the frst applican) 2 ‘The question of res judicata: in imine argument [12] Before dealing with the merits ofthis application, respondents raised the doctrine of res judicata in thatthe issues which emerges inthe present case had previously been disposed of by the Constitutional Court in Prine v The President Cape law Society and others 2002 (2) SA 794 (CC) (rterred to in this dispute as Prince 2). In Prince 2, one of the present applicants, Prince, challenged the conatittonalty of secions 4(a) and 4() ofthe Drugs Act together wih s 22 A of the Medicines Act. He contended that they were in confict withthe Consttuton, in Paticular that these provision infringed, Inter aia his ight to religious freedom Contained in ¢ 15 (1) ofthe Constitution, {13] In Prince 2, argument was dlrected against the impugned provisions as being overbroad in that they prohibited the use of cannabis for all persons, regardless of the purpose of the use of cannabis, The inclusion of Rastafari, according o Prince, was unjustifiable in that the prohibition extended its scope to the possession or use which was requied by members of the Rastasfar, as pat of their religious practice. In the majorty judgment, penned by Chaskalson CJ, Acker Wand Kreger Ju, It was accepted thatthe legislation eriminalising the Use and possession of cannabis limited the religous rights of Rastafari under the Constitution and that what had to be decided was whether the limitation was justifiable in terms of s 36 ofthe Constitution (para 111). Significantly, in Prince 2 the applicant dd not ispute thatthe legislation prohibiting the possession and use of cannabis by the general public served a legitimate government purpose. ‘According to the mejorty he accept that does, bu contends that his aii requires him to use cannabis and that out of respect forthe religious rights of himself and oth Rastafari, the legistaton ought to have made an exception in their favour permiting such use for relgious purposes.’ (para 113) 14) 115) ‘The majority then went onto note: “The unchallenged general prohibition in the disputed legislation agsinet the possession or use of harmful drugs is directed in the frst instance to outing off the supely of such drugs to potential users. It seeks o acess the harm caused by the rug problem by denying all possession of prohibited substances (other than for ‘medical and research purposes) and not by seeking to penalise ony the harmful Use of such substances, This facilites the enforcement ofthe legislation. The State was not called upon to justty this method of controling the use of harmful rugs. The valty ofthe general prohibition against both use and possession was accepted, The case the State wes called vpon to meet in this case was that in ‘addition to the medical and research exemptions contained in the legislation Provisions should also have been made for the use of cannabis for religous purposes by members ofthe Rastafari religion. (para 116-117) In deciding Prince 2, the majority placed considerable emphasis on the «ificuity confronting a itgant in seeking to be exempted for religious reasons from the provisions of a criminal law of general application, (para 129). In the view of the majority “There is ro objective way in which a law enforcement official could dstinguish between the use of cannabis for religious purposes and the use of cannabis for recreation. It would be even more dificult, f not impossible, to distinguish objectively between the possession of cannabis forthe one or the other of the above purposes. Nor is there any objective way in which a law enforcement oficial “ could determine whether a person found in possession of cannabis who says that its possessed for religious purposes is genuine or not’ (para 130) [16] Accordingly, the majority found that the granting of a limited exemption for the noninvasive religious use of cannabis, even under the control of a Rastafarian priest, was not 2 competent remedy on the evidence placed before the court (para 142), On this basis the majority dismissed the appeal [17] Significantly, in nis minority judgment, Nocobo J (as he then was), supported by three other judges which resuited ina 5:4 spit in the Court, set out the terms under which he found the relevant legislation to be inconsistent with the Constitution because of its extensive prohibition of the use and possession of cannabis by Rastafarl adherents for bona fide relgious purposes. “1 accept thatthe goal of the impugned provisions isto prevent the abuse of pendent — producing drugs and effing in those drugs, | als accept hati is 2 legtimate goal The question le whether the means to employ that goal are reasonable. In my view, they ce net. The fundamental reason why they are not is because they ar overbroad. They are ostensibly aimed at the use of dependence- Producing drugs tha are inherently harm and tatcking in those kugs. But they 10 urreasonabe nna hey als target Utes tat have not een shown to pose @ "ak of harm or tebe incapable of beng subjected to stct regulation and control “The net they cat is so wide that uses that pose no rk of haem an that can effecively be regulated and subjected to government conta ike ether dangerous drugs are ht bythe prohibition.” (para 81) [18] From this description of the judgments in Prince 2 it fe clear that the Constitutional Court dif not consider whether any prohibition as contained in ss 4 land 5 of the Drugs Act infringed the right to privacy. The case turned on a limited 8 ‘question, namely an application fora limited exemption for religious reasons from the provisions of a criminal law of general application. As indicated, the majority found that the limitation of the right to religious freedom was justifiable because it Would be impractical to administer a religious exemption without fundamentally Lndermining the general prohibition against possession. By contrast, the minority were ofthe view that ¢ religious exemption could be granted without undermining the purpose of the prchibton. indeed Ngcobo J made the inited scope of the dispute before the Cour clear when he wrote: it's important to smphasice what this case is not about but what its about. This case Is not concemed with a broad chatenge to the consttuionaliy of the prhibiten onthe use or possession of cannabis” (para 31) Ngcobo J went on to say “in ts Cour, as n the Courts below, this case was approached from the footing ‘at the prohtbiton contained in the impugned provisions served a legtimate ‘government intrest Indeed there was no suggestion either inthe papers or in ‘xgument that the objective pursued by the prohibition wes not laudable. The consituonsl corplaint befoe us Is that the prohtion is consitutonaly bad because it is overbroad. To put it iferenty, the complsit is thatthe legitimate government purpose served bythe prchibion coulé be achieved by lss restive ‘means. itis that compliant, and it alone that we are called upon to consider” (pa 35) (my emphasis) [19] The same approach was adopted inthe majority judgment to the scope of the dispute: “The pray issu in the appeal to thi court was whether the SCA was corect in holding that the lesilaton was not inconsistent withthe Constitution. In the SCA land again in this Court the challenge to the legislation was not against the 6 iminasation of the possession and use of cannabis. twas a lmited one, namely \whether ihe fale to provide an exemption in respect of the use of cannabis for ‘religious purpose by Rastafari inftnged their religious rights under the Constitution” Para 94 (20] From these passages, it is clear thatthe doctrine of res judicata does not _2pply, in that Prince 2 did not decide the dispute presently before this court itis fair to say that his dispute requires the court to deal precisely with that which was not an issue in Prince 2. To the extent that there is any doubt, Mr Prince in his founding affidavit brings clay thereto by defning the issue before tis Court as follows: "The substantive questions inthis mater are to what extent and in what way ‘overnment may dictate, reguate or proscribe conduct considered to be harmful 35, well a6 what isthe threshold the harm must cross in order for goverment to intervene. Can goverment legitimately dictate what people eat, dink or sake in the confines of their own homes or in property designated places? Privacy ‘concerns dictate and our consttuion recognises thal there should be an area of ‘autonomy that precludes outsider intervention, It appears to me that this was the core of the case brought before this cour, that i, whether the iningement of the right to privacy caused by the impugned legislation Can be justified in terms of s 36 of the Constitution. Curiously in the light ofthe in limine challenge, in respondents’ heads of argument applicants’ case is summarised and described as ‘a broader consttona challenge to that confronted the Consttutonal Cout in Prince 2. Mention is made of the applicants’ attack thatthe current profibiton against cannabis violates the equality rights in terms ofs 9 (2) of the Constitution in that cannabis users are treated differently in law from the users 7 Cf alcohol, tobacco and other foods substances. Further, iis contended that the applicants, particularly Mr Acton, claimed that they have medical rights to use cannabis and that cannabis isnot only harmful but may be mecically beneficial Its ‘also suggested that the case involves the argument thatthe prohibition impinges ‘upon the rights to dignity, equality and freedom of cannabis user. Menton is made of the breach of the right of privacy, but only briefly which was unfortunate 2s itis this latter right, on the basis of Mr Prince's affidavit, whichis central o his case. It is to that right that | must now turn The right to privacy [21] Section 14 ofthe Constitution guarantees aright to privacy. In Bernstein and ‘others v Bester and others NNO 1996 (2) SA 751 (CC) Ackermann J said 't seems fo be a sensible aporoach fo say thatthe scope of @ person's privacy ‘extends afro only to these aspects in egar to which a legitimate expectation of privacy canbe harboured. (para 75) ‘Ackerman J went on to say: “A ver high level of protection is given to the ncvdua's inmate personal sphere of fo ard the maintenance of is basle preconctions and there is a na Untouchable sphere of human keedom thats beyond interference from any pubic authority, S0 much so that, in regard to thie most intimate core of privacy, no |ustifable vation theret can tke place, But this most intimate core is naromly constued This inviolable core is let Behind once an individual enters into Felationships with persons outside this closest intimate sphere; the individual activites then acquire 2 social dimersion and the right of pvacy in this context becomes subject to ination." (para 77) (22) _Ithas become estabished law, insofar as privacy is concered, that this right becomes more powerful and deserving of greater protection the more intimate the personal sphere ofthe life of a human being which comes ito legal play. See, for ‘example, Investigating Directorate: Serious Economie Offenses and others v ‘Hyundai Motor Distributors (Ply) Lid and others In Re: Hyundai Metor Distributors (Pt) Linited and others v Smit NO and others 2001 (1) SA 645 (CC) at para 183, [23] There is connection between an individual's right to privacy and the right to Algnity which is protected in terms of s 10 of the Conettation, As the court noted in Teddy Bear Cinic for Abused Children and Another v Ministor of Justice and Constitutional Cevelopment and another 20%4 (2) SA 168 (CC) at para 64: Privacy fosters human dignty nso ss premised on ad protects an inciviuat'sentlement to 2 “sphere of private inimacy and autonomy’ It flows from the animating idea of Privacy that a ight to make intimate decisions and to have one’s personal autonomy protected is central to individual identity who is ented to make decisions about these corcerns without undue interference from the State, Indeed in Caso v Minister of Safety and Security 1996 (3) SA 617 (CC) at para 91 Didcot J in a case

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