South African Journal on Human Rights

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Cognitive liberty and the constitutionality of

criminalising psilocybin mushrooms in South
Africa

Sebastian William Foster

To cite this article: Sebastian William Foster (2023) Cognitive liberty and the constitutionality
of criminalising psilocybin mushrooms in South Africa, South African Journal on Human Rights,
39:1, 1-25, DOI: 10.1080/02587203.2023.2202875

To link to this article: https://doi.org/10.1080/02587203.2023.2202875

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SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS
2023, VOL. 39, NO. 1, 1–25
https://doi.org/10.1080/02587203.2023.2202875

ORIGINAL ARTICLE

Cognitive liberty and the constitutionality of criminalising

psilocybin mushrooms in South Africa
Sebastian William Foster
University of Stellenbosch, Stellenbosch, South Africa

ABSTRACT ARTICLE HISTORY

The principle of cognitive liberty is assessed as a ground for chal- Received 22 March 2022
lenging the constitutionality of the criminalisation of psilocybin Accepted 16 January 2023
mushrooms. To do so, s 12 of the Constitution of the Republic of
KEYWORDS
South Africa, 1996, is analysed, determining that s 12(2) is not
Cognitive liberty; psilocybin
a numerus clausa and is capable of enforcing further protections mushrooms; bodily
and/or entitlements, such as cognitive liberty. Further, it is sug- integrity; psychological
gested that the interpretation of s 12(2)(b) offers protection to integrity; constitutional law;
both body and mind, and as such, also protecting the cognitive drug law reform
liberty right. Having established that the Constitution protects the
right afforded by the principle cognitive liberty, it is deduced that
the current criminalisation of psilocybin mushrooms – a means
through which an individual may exercise their cognitive liberty
rights – in terms of the Drugs and Drug Trafficking Act and
Medicines and Related Substances Act, conflict with the rights
established in s 12 of the Constitution. A s 36 limitation of rights
analysis is presented, detailing that the criminalisation of psilo-
cybin mushrooms is not justifiable when the nature and import-
ance of the limited right are weighed against the importance and
purpose of the criminalisation. As such, this article concludes that
the current criminalising legislation is not justifiable.

1. Introduction
Naturally occurring psychedelic substances have been used by humans arguably since
our prehistoric ancestors began to roam the earth. Humans ‘have been using psycho-
active – mind-affecting – substances such as opium, cannabis, coca, betel, kava, pey-
ote and qat for millennia, and for diverse purposes ranging from social and spiritual
to medicinal and nutritional’.1 Evidence of the use of these substances can be found
throughout the history of many human civilisations.2 However, in modern times

CONTACT Sebastian William Foster SebastianWilliam.Foster@gmail.com Stellenbosch University, Private Bag

X1, Matieland 7602, Stellenbosch, South Africa.
1
J Sinha ‘The history and development of the leading international drug control conventions’ (21 February 2001)
prepared for the Senate of Canada Special Committee on Illegal Drugs.
2
JH Ellens & TB Roberts The Psychedelic Policy Quagmire: Health, Law, Freedom, and Society (2015) 300. The authors
speak of psychedelic ‘plants’; however, fungi are a separate eukaryotic kingdom.

ß 2023 The Author(s). Published by Informa UK Limited, trading as Taylor & Francis Group
This is an Open Access article distributed under the terms of the Creative Commons Attribution License
(http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use, distribution, and reproduction in any medium, provided
the original work is properly cited. The terms on which this article has been published allow the posting of the Accepted Manuscript
in a repository by the author(s) or with their consent.
2 S. W. FOSTER

society has largely frowned on the use of psychedelics, typically denoting recreational
drugs with negative societal connotations of illegality and unwanted harm, abuse, or
addiction. This is also the case in South Africa, where the use of psychedelic substan-
ces – such as psilocybin – is criminalised under the Drugs and Drug Trafficking Act
140 of 1992 and the Medicines and Related Substances Act 101 of 1965.
Academic development on the right to psychological integrity may, however, pose
a fresh avenue to challenge such criminalisation. The theory of cognitive liberty –
succinctly regarded as the right to unfettered control over one’s mind, mental proc-
esses, and the freedom to explore one’s consciousness without restriction – is one
such avenue through which criminalisation may be challenged. Cognitive liberty
entails the liberty to engage in mind altering practices as and how one deems fit. It is
heavily linked, if not tantamount, to bodily autonomy. Accordingly, academic analy-
ses on whether the right to cognitive liberty has a place in South Africa’s progressive
constitutional law – and deserves the accompanying legal recognition and protection
– are beckoning.
The right to freedom and security of the person – as guaranteed in s 12 of the
Constitution of the Republic of South Africa, 1996 – may arguably provide a consti-
tutional basis for not only the recognition of cognitive liberty, but further, the recon-
sideration of how psychedelic use is regulated. This article analyses the continued
justification for a blanket ban on the use of psychedelic substances, focussing specific-
ally on psilocybin mushrooms, to test the potential role of a right to psychological
integrity in the constitutional analysis of such ban.
The emphasis here will be solely on whether the criminalisation is justifiable in
terms of the right to freedom and security of the person, specifically the right to psy-
chological integrity, as provided for in s 12 of the Constitution. I will argue that the
Constitution provides for the right to cognitive liberty, and as psilocybin mushrooms
aid in the exercising of an individual’s cognitive liberty, their criminalisation is a limi-
tation of a constitutional right. Accordingly, the justification of the limitation must
pass constitutional muster in terms of a s 36 analysis.

2. Understanding psychedelics and their criminalisation

To better grasp the intricacies of this paper’s arguments, it is necessary to offer a context-
ualisation of the fundamental constituents in play – psychedelics substances, cognitive lib-
erty, and S12 of the Constitution. What psychedelic substances are, and their
criminalisation in South Africa, will be detailed through a discussion of the criminalising
legislation, notably the Drugs Act and the Medicines Act. Furthermore, the notion of
cognitive liberty will be clarified, explaining how it is protected and guaranteed by the
Constitution. Finally, a discussion of s 12 of the Constitution will be presented.

2.1 Psychedelic substances

2.1.1 What are psychedelic substances?
The classic psychedelics are psilocybin (found in mushrooms), mescaline (found in
peyote cacti), dimethyltryptamine (DMT, found in ayahuasca), ibogaine (found in the
 SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS 3

tabernanthe iboga plant), lysergic acid diethylamide (LSD, synthetically produced

from ergot fungi) and 3,4-methylenedioxymethamphetamine (MDMA, synthetically
produced).3 These substances form part of a larger chemical family of consciousness-
altering substances. Predominantly used as sacraments throughout human history,4
these psychedelics have traditionally been ingested within sacramental, religious, or
spiritual settings, but may also be used recreationally, and potentially medically.

2.1.2 Effects of psychedelic substances

Psychedelic substances have an effect on the human brain that regularly renders expe-
riencers in a state of ineffability,5 challenged to verbalise what is oftentimes a deeply
personal, complex experience. Therefore, to understand what psychedelics do to
humans, the effects will be separated into primary and secondary categories. The pri-
mary effects relate to the immediate effects of the psychedelic substances and how
they alter consciousness. The secondary effects regard the long-term influence of psy-
chedelics. The associated harms will also be detailed.
The active chemicals in psychedelics do not ‘produce, originate or form anything
at all’.6 Rather, they ‘modify fundamental brain processes that normally serve to con-
strain neural systems central to perception, emotion, cognition, and sense of self’.7
This allows the human brain to experience the heightened state of consciousness and
synaesthesia,8 referred to as a psychedelic experience, or colloquially as a ‘trip’. This
altered state of consciousness is the primary effect of psychedelic substances.
Consciousness is ‘our subjective awareness of ourselves and our environment’,9 and
can be altered by many activities,10 or substances.11 The reasons that psychedelics
have an effect on the human brain and consciousness is neatly summarised as fol-
lows: a psychedelic substance’s ‘“keys” can fit human “locks”’.12 The human brain is
predisposed to receiving the active ingredient contained in psychedelics.
To comprehend the science behind a psychedelic experience, a simplistic under-
standing of the workings of the brain is necessary. The human brain contains billions
of neurons that connect with one another through signals that are transported by
chemicals called neurotransmitters. There are a variety of neurotransmitters respon-
sible for the release of neurotransmitter molecules between two neurons. These mole-
cules can bind to the receiving neuron’s receptors where they act upon the receptors

3
D Marlan ‘Beyond cannabis: Psychedelic decriminalization and social justice’ (2019) 23 Lewis & Clark Law Review
851, 853.
4
MW Johnson, PS Hendricks, FS Barrett & RR Griffiths ‘Classic psychedelics: An integrative review of epidemiology,
therapeutics, mystical experience, and brain network function’ (2018) 197 Pharmacology & Therapeutics 83, 83.
5
DE McCulloch, MZ Grzywacz, MK Madsen et al ‘Psilocybin-induced mystical-type experiences are related to
persisting positive effects: A quantitative and qualitative report’ (2022) 13 Frontiers in Pharmacology 1, 12–13.
6
J Ott ‘Entheogens II: On entheology and entheobotany’ (1996) 28 Journal of Psychoactive Drugs 205, 205.
7
JMR Arce & MJ Winkelman ‘Psychedelics, sociality, and human evolution’ (2021) 12 Frontiers in Psychology 1, 2.
8
Synaesthesia is the experiencing of two or more senses at once.
9
C Stangor & J Walinga Introduction to Psychology 1st Canadian ed (2014) 223.
10
Such as through hypnosis, sensory deprivation, holotropic breathwork (M Pollan How to Change Your Mind: The
New Science of Psychedelics (2018) 418), meditation, and other non-drug-induced mechanisms; Stangor & Walinga
(ibid) 266.
11
Stangor & Walinga (ibid) 256; such as stimulants, depressants, opioids, and hallucinogens.
12
Ellens & Roberts (note 2 above) 300.
4 S. W. FOSTER

to elicit a variety of effects or reactions.13 When psychedelics are consumed, their

chemicals bind to the neurons and receptors of the brain, eliciting the psychedelic
response. These substances primarily stimulate the serotonergic and dopaminergic
systems and indirectly stimulate the glutamatergic and gamma-aminobutyric acid sys-
tems.14 It is useful to note that psilocin, the metabolite of psilocybin, shares close
similarities in composition and shape with serotonin.15
The psychedelic experience has been explained as not ‘causing physical addiction,
craving, major physiological disturbances, delirium, disorientation, or amnesia’ and
‘more or less reliably [producing] thought, mood, and perceptual changes otherwise
rarely experienced except in dreams, contemplative and religious exaltation, flashes
of vivid involuntary memory, and acute psychosis’.16 The experience begins soon after
a psychedelic is consumed, with the experience’s duration ranging from minutes to
hours, depending on the substance. The user will begin to experience ranging altera-
tions in their engagement with reality, based on the substance’s quantity and quality.
This results in hallucinations ranging from a subtle heightening of senses to a fully
immersive experience in which reality dissipates and is replaced by deep
hallucinations.
However, reducing a psychedelic experience to simply hallucinations is inaccurate.
Rather, psychedelics produce more than ‘frank hallucinations’, suggestively having
radical effects on self-identity and human connectedness.17 As research has shown,
the experience can encourage enduring positive benefits, with users reporting feelings
of ‘universal connectedness, experience of beauty, and familial love’.18
The secondary effects of psychedelic substances include enduring mood and brain
function changes. Reportedly, these lasting effects ‘promote cell survival, [are] neuro-
protective, and modulate neuroimmune systems of the brain’.19 Whereas the primary
effects wear off within hours, there are physical and mental secondary effects which
endure in the long term. These effects appear beneficial, with no reported negative
effects days to months after use.20
There are considered risks involved with psychedelic use. General acute side-effects
to psychedelics include ‘pupillary dilation, nausea, vomiting, tremor, hyperreflexia,
dizziness, and ataxia’, coldness, diarrhoea, fatigue, and agitation/restlessness.21 A rare
side-effect is hallucinogen-persisting perception disorder – characterised by

13
W Birkmayer & P Riederer Understanding the Neurotransmitters: Key to the Workings of the Brain (2013) General
introduction and definitions, see for further insight; dopamine and serotonin are examples of neurotransmitters.
14
T Calvey Psychedelic Neuroscience (2018) 3.
15
FX Vollenweider ‘Brain mechanisms of hallucinogens and entactogens’ (2001) 3 Dialogues in Clinical Neuroscience
265, 266; See further: HA Geiger, MG Wurst & RN Daniels ‘DARK classics in chemical neuroscience: Psilocybin’
(2018) 9 ACS Chemical Neuroscience 2438, 2438–2440.
16
L Grinspoon & J Bakalar Psychedelic Drugs Reconsidered (1979) 9.
17
Johnson et al (note 4 above) 84.
18
McCulloch et al (note 5 above) 14, see further for anecdotal reports.
19
Calvey (note 14 above) 3.
20
JJ Rucker, L Marwood, R-LJ Ajantaival et al ‘The effects of psilocybin on cognitive and emotional functions in
healthy participants: Results from a phase 1, randomised, placebo-controlled trial involving simultaneous
psilocybin administration and preparation’ (2022) 36 Journal of Psychopharmacology 1, 10.
21
D Bender & DJ Hellerstein ‘Assessing the risk–benefit profile of classical psychedelics: A clinical review
of secondwave psychedelic research’ (2022) 239 Psychopharmacology 1907, 1919.
 SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS 5

flashbacks, perception distortions, and visual disturbances – although its prevalence is

‘generally considered low’.22
The most common risk is that of a dysphoric experience, otherwise referred to as
a ‘bad trip’ – ‘an anxious, dysphoric, confusing, and, less commonly, delusional
acute reaction’.23 This reaction is what was, and still is, considered the dark side of
psychedelics. A dysphoric experience occurs predominantly when psychedelics are
administered in an environment not conducive to the user’s safety, or where the
individual is unsupervised and/or importantly, unable to critically interpret the
experience correctly.24
Understanding the importance of ‘set’ and ‘setting’ in psychedelic use is fundamen-
tal.25 Set refers to the mindset or mental state of the individual at the time of, and
during, the psychedelic experience, and setting donates to the environment in which
the individual is in – be it recreational, sacramental, or clinical, for example.
Regarding set, individuals who have ‘[n]euroticism [ … ] a propensity towards nega-
tive emotionality and [are] poor [at] coping with stress’ are more inclined to experi-
ence a bad or challenging psychoactive experience.26 Accordingly, those who lack
positive coping mechanisms and have a negative inclination to the experience or their
current state of mind, are more likely to have a negative experience.
The setting in which psychedelics are used will also effect the experience. Calming
and familiar environment – whether recreational, sacred, or clinical setting – greatly
reduce the likelihood of a dysphoric experience, whereas overstimulating, anxiety-
inducing environment increase the likelihood thereof. Research on a large group
study of individuals in non-clinical settings, concluded that ‘a “recreation[al]” inten-
tion for the psychedelic experience was associated with a lower likelihood of having
a challenging experience’ or bad trip.27 Arguably, being in a familial recreational set-
ting allows for a positive and open-minded expectation of the experience.
Accordingly, it would appear that a strong predictor of psychedelic-associated risks
remains set and setting.
However, potential risks remain likely for those who engage in reckless psychedelic
use without sufficient guidance or understanding. During a dysphoric experience,
individuals may pose a risk of harm to themselves and potentially others, should they
act irresponsibly or aggressively. Furthermore, individuals who are at risk of psychotic
disorders and vulnerabilities may exacerbate their susceptibilities, albeit research

22
L Orsolini, GD Papanti, D De Berardis, A Guirguis, JM Corkery & F Schifano ‘The “Endless Trip” among the NPS
Users: Psychopathology and Psychopharmacology in the Hallucinogen-Persisting Perception Disorder. A Systematic
Review’ (2017) 8 Frontiers in Psychiatry 1, 2.
23
Johnson et al (note 4 above) 85.
24
R Miller Drugged: The Science and Culture Behind Psychotropic Drugs (2014) 17, the author explains how one who
consumes a psychedelic unsuspectingly – in this case Amanita muscaria – will report having suffered from
Amanita muscaria poisoning syndrome, whereas a knowing consumer will ‘frequently report a positive and
pleasant experience’.
25
See further: Bender & Hellerstein (note 21 above) 1921.
26
FS Barrett, MW Johnson & RR Griffiths ‘Neuroticism is associated with challenging experiences with psilocybin
mushrooms’ (2017) 117 Personality and Individual Differences 155, 158, this study was on post-event submissions
from non-clinical psilocybin users.
27
ECHM Haijen, M Kaelen, L Roseman et al ‘Predicting responses to psychedelics: A prospective study’ (2018)
9 Frontiers in Pharmacology 1, 17.
6 S. W. FOSTER

suggests the likelihood of such is very low.28 Additionally, there remains possible risks
when administering other substances with psychedelics, such as alcohol or serotoner-
gic drugs.29
Moreover, in the aforementioned large group study, researchers concluded that
a ‘challenging experience seemed to have a negative influence on well-being scores’,
indicating potential lasting negative effects.30 Lastly, a study on individuals who had
dysphoric experiences reported that 11 per cent caused risk of physical harm to
themselves or others, 2.6 per cent behaved physically aggressive or violently, and
2.7 per cent required medical intervention. Three cases of the almost 2000 respond-
ents admitting attempting suicide, with three reporting enduring psychotic symp-
toms. However, despite this study focussing on bad trips, ‘84 per cent of
respondents reported having benefitted from the experience’.31
It would appear that psychedelic substances are ‘generally considered physiologic-
ally safe and do not lead to dependence or addiction’.32 This sentiment is supported
by research which found that a single 10 mg or 25 mg dose of psilocybin, given to
healthy subjects, elicited no significant adverse events and resulted in no short- or
long-term effects deemed clinically relevant.33 However, the caveat remains that fur-
ther research ought to be encouraged to formulate a greater understanding of the
potential risks of different types of psychedelics.

2.2 The criminalisation of psychedelic substances in South Africa

2.2.1 History and modern context
Imperative here is to deduce the legal reasoning and context that led to the criminal-
isation of psilocybin mushrooms and their psychedelic cousins. Psychedelics have
long been associated with the 1960s counterculture – an era when young adults in
the Western world, notably the United States of America, were protesting against civil
injustices and the Vietnam War. A prominent protagonist of the counterculture was
Timothy Leary. His radical rhetoric, advocating for psychedelic use, garnered him the
title of ‘the most dangerous man in America’ from then US President Richard
Nixon.34 The growing anti-war agenda and hippie counterculture movement, coupled
with the increasing publicity of the ‘dark side of psychedelics’,35 led Nixon to combat

28
Johnson et al (note 4 above) 85.
29
B Michael & K Thomas ‘Serotonin toxicity of serotonergic psychedelics’ (2021) 239 Psychopharmacology 1881,
1884–1885.
30
Haijen et al (note 27 above) 15.
31
TM Carbonaro, MP Bradstreet, FS Barrett et al ‘Survey study of challenging experiences after ingesting psilocybin
mushrooms: Acute and enduring positive and negative consequences’ (2016) 30 Journal of psychopharmacology
1268, 1278.
32
D Nichols ‘Psychedelics’ (2016) 68 Pharmacological Reviews 264, 264.
33
Rucker et al (note 20 above) 10.
34
B Minutaglio & S Davis The Most Dangerous Man in America: Timothy Leary, Richard Nixon and the Hunt for the
Fugitive King of LSD (2020).
35
Pollan (note 10 above) 3; due to their growing publicity and recreational use, many people were having negative
psychedelic experiences. When used in an unsafe environment not conducive to a meaningful experience, the
likelihood of a negative psychedelic experience is increased. Used incorrectly, psychedelics can lead to unwanted
experiences or place the user at risk due to their intoxication.
 SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS 7

the movement by setting into motion a hastened demonisation and criminalisation

of, inter alia, psychedelics – bringing into legal effect the war on drugs.
Subsequently, the Convention on Psychotropic Substances of 1971 (CPS) was
adopted.36 South Africa assented to the CPS in 1972, and in 1976 the CPS entered
into force.37 The CPS lists psychedelics as schedule 1 (most restricted) substances –
substances which posed a serious public health risk and have unknown or no thera-
peutic value – alongside THC,38 and amphetamine-type stimulants.39 The CPS
required state parties to enact domestic legislation which treated any conduct con-
trary to the obligations of the CPS as a serious, ‘punishable offence’, enforcing that
offenders be ‘liable to adequate punishment, particularly by imprisonment or other
penalty of deprivation of liberty’.40
Instead of being premised on scientific assessments of the possible harms of psy-
chedelics, Nixon’s anti-psychedelic agenda was rather a ‘political assault designed to
help Nixon win, and keep, the White House’.41 As former US domestic policy chief
John Ehrlichman disclosed in 1994:
The Nixon campaign in 1968, and the Nixon White House after that, had two enemies:
the antiwar left and black people [ … ] We knew we couldn’t make it illegal to be either
against the war or black, but by getting the public to associate the hippies with
marijuana [and psychedelics] and blacks with heroin, and then criminalizing both
heavily, we could disrupt those communities. We could arrest their leaders, raid their
homes, break up their meetings, and vilify them night after night on the evening news.
Did we know we were lying about the drugs? Of course we did.42
Clearly, there is compelling evidence to suggest that the catalyst for the wide-spread
criminalisation of psychedelic substances was a political agenda, informed by prejudi-
cial and questionable beliefs, rather than scientific evidence regarding the dangers
associated with the substances.
Despite this, many states and societies continue to perceive psychedelics (and
many other drugs) in a negative light, upholding the status quo initiated by Nixon’s
presidency that these substances are harmful, dangerous, addictive, and have no
therapeutic benefit. Although drug laws may have been reassessed over the decades,
arguably these reassessments have inherently been influenced by the sentiment of the
worldwide criminalisation, rather than scientific research. This opinion is seemingly
justified by the many academic and clinical studies which were disapproved of and
not conducted over these decades, and by the lack of worldwide developments in
decriminalising psychedelics. For example, a 1985 article noted morality as a justifica-
tion for the sanctions on psychedelic substances, further noting that users were per-
ceived by the public as being linked to moral degeneracy, mental illness, and criminal

36
Convention on Psychotropic Substances (adopted 21 February 1971 entered into force 16 August 1976) 1019
UNTS 175.
37
United Nations Treaty Collection ‘Chapter VI: 16’ (entered into force and registered 16 August 1976) <https://
treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=VI-16&chapter=6&clang=_en>.
38
The active substance in cannabis, decriminalised in South Africa for private consumption by an adult following
Minister of Justice and Constitutional Development v Prince 2019 (1) SACR 14 (CC).
39
Such as MDMA and ecstasy.
40
Article 22(1)(a) of the Convention on Psychotropic Substances (note 36 above).
41
T LeBianco ‘Report: Aide says Nixon’s war on drugs targeted blacks, hippies’ (24 March 2016) CNN Politics.
42
D Beres ‘Why are psychedelics illegal?’ (13 October 2020) Psychedelic Spotlight.
8 S. W. FOSTER

behaviour.43 It is, therefore, apropos to state that ‘it is the modern stigma attached to
drugs – not any inherent quality of the chemicals – that makes their use shocking’.44
As such, it seems evident that the criminalisation of psychedelics is based largely
upon moral and political beliefs, rather than on the harms they may pose to individu-
als and society.

2.2.2 The criminalising legislation in South Africa

As determined by international law, and consequently similarly in other jurisdic-
tions,45 plants/fungi with psychedelic properties are not, themselves, criminalised –
rather only the ‘chemical substances which constitute the active principles contained
in them’.46 In effect, this places a ban on the natural substance itself. Following South
Africa’s accession of the CPS, the laws which domestically criminalise psychedelics,
inter alia, psilocybin, are the Drugs Act and the Medicines Act.
The Drugs Act was enacted in order to ‘bring South Africa into line with inter-
national drug norms’,47 like the CPS. As per s 4(b) and s 5 the Drugs Act, the use,
possession, and dealing in of psilocybin is illegal, when read with Part III of Schedule
2 of the Drugs Act. Part III of Schedule 2 lists psilocybin as an undesirable depend-
ence-producing substance. The cultivation of psilocybin-containing mushrooms is
deemed sufficient to constitute ‘dealing in’.48 The Drugs Act makes no exception for
private use, possession, and/or cultivation of psilocybin-containing mushrooms by an
adult. In accordance with the Medicines Act, the acquisition, use, possession, manu-
facturing or supplying of psilocybin mushrooms is prohibited; however, the Director-
General may authorise the use of such for the ‘purposes of education, analysis or
research’.49 Accordingly, there is no ground upon which the recreational, medical, or
sacramental use of psilocybin mushrooms may be allowed.
Both the Drugs Act and the Medicines Act are in force and fully effective.
However, an assessment must be undertaken to determine if these Acts are indeed
constitutional. Although there may be scope to challenge the constitutionality of both
Acts on multiple grounds,50 this article will solely focus on challenging their validity
based on s 12 of the Constitution.

2.2.3 The influence of state paternalism on the prohibition of psilocybin

It is prudent to consider the paternalistic nature of the criminalisation of psilocybin
mushrooms, considering this article will discuss the rights of individuals to have full
control and freedom with regard to their body and mind. Hence, it is necessary to
understand how the prohibition of psilocybin mushrooms is paternalistic – that is, it
is a manner through which the state can justify stopping individuals from acting

43
R Rogers & J Cavanaugh ‘Illegal drug use’ (1985) 3 Behavioral Sciences & the Law 239, 239.
44
A Gross & S Duke America’s Longest War: Rethinking Our Tragic Crusade Against Drugs (2014) 4.
45
Article 32 of the Convention on Psychotropic Substances (note 36 above); Ellens & Roberts (note 2 above) 300.
46
A Lande Commentary on the Convention on Psychotropic Substances: Done at Vienna on 21 February 1971
(1976) 387.
47
Prince v The President of the Law Society of the Cape of Good Hope 1998 JDR 0368 (C) 15.
48
Section 1(1) of the Drugs Act.
49
Section 22A(9)(a)(i) read with Schedule 7 of the Medicines Act.
50
Potential challenges could be raised on the grounds of, inter alia, s 9, 10, 14, 15, 16, 18, and 31 of the
Constitution.
 SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS 9

a certain way, on the basis that it is for their own good, on the assumption that the
state knows best.
Paternalism, as a legal doctrine, allows for the reduction of an adult’s ability to act
with free volition. When a state acts in a paternalistic manner to justify decision-
making, it limits competent adults’ autonomy to act freely, creating an assumption
that they are unable to make rational and mature decisions for, and regarding, them-
selves. Joel Feinberg, in discussing the theory of paternalism, argues that the ‘fully
voluntary choice or consent of a mature and rational human being concerning mat-
ters that affect only his own interests is such a precious thing that no one else (and
certainly not the state) has a right to interfere with it simply for the person’s “own
good”’.51 As such, paternalistic governmental decision-making is arguably an
encroachment on the rights of adults to the full exercising of their freedom rights. It
is argued that this encroachment is a limitation of constitutional rights, and therefore,
can only be limited justifiably.
Justifying a limitation in terms of paternalistic beliefs alone should never be
acceptable. Where the state, through regulation or criminalisation, limits rights on
the basis of mere paternalism – not paternalism paired with a more reasonable cause
– such a limitation can never be justifiable and should not be legally acceptable. The
state’s duty is not to parent its citizens, rather, it should encourage and protect the
exercising of freedom rights.
Through paternalism, the state acts as a parental figure for all citizens, regardless
of majority. When adults are ‘[de]prived of the right to choose for themselves, they
will soon lose the power of rational judgment and decision’.52 This is certainly not an
outcome desired within the South African constitutional dispensation, especially in
light of the restrictions on freedoms experienced in South African’s recent history,
where many were ‘victims of processes of historical silencing’.53 As such, criminalisa-
tion on the basis of mere paternalism is undesirable – the state should not be an
overbearing, rigid parental figure, and adults should be empowered to assume risk.
However, although it would be invalid for the state to outright criminalise psyche-
delics on paternalistic bases, paternalism may be useful in the regulatory process. It is
agreed that necessary limitations are desirable, such as those applicable to, inter alia,
alcohol and nicotine. Paternalism would be justifiable in restricting a citizen’s volition
to, for example, drive under the influence or take the substances in certain
environments.54

3. Section 12 of the Constitution

The rights secured in s 12 of the Constitution is the right to freedom and security of
the person and the right to bodily and psychological integrity.55 The Constitution

51
J Feinberg ‘Legal Paternalism’ (1971) 1 Canadian Journal of Philosophy 105, 111.
52
Ibid 105.
53
Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC) para 234.
54
AE Cudd ‘Taking drugs seriously: Liberal paternalism and the rationality of preferences’ (1990) 4 Public Affairs
Quarterly 17, 17–22.
55
Section 12 of the Constitution reads:
10 S. W. FOSTER

offers examples of what the right protects, but this list is not a numerus clausus – evi-
dent through the term ‘includes’. The focus here is to determine if s 12(2) offers per-
sons the right to cognitive liberty and by extension the right to use psilocybin
mushrooms to achieve this outcome.
In the Interim Constitution, the right to freedom and security of the person was
formulated differently,56 with the right to personal autonomy being secured within
s 11(1).57 The Interim Constitution protected the right to freedom and security of the
person, which included the right not to be detained without trial, and protections
against torture and degrading treatment. Despite this, the legislature deemed it vital
to extend the ambit of the right. The Constitution extended this right to add protec-
tion against arbitrary deprivation of freedom, as well as providing everyone with the
right to bodily and psychological integrity. This deliberate extension of the right clari-
fies that the Constitution specifically protects everyone’s right to integrity in both the
psychical and metaphysical sense – both the flesh and the mind – as will be eluci-
dated upon.
It is important to understand the use of the terminology in s 12. Integrity, in the
legal context, is used to denote notions of ‘self-determination and autonomy’ – the
right to the control over one’s body, and arguably, one’s mind.58 Bodily integrity –
commonly referred to as corpus – is the freedom of self-determination for a person
to do with their body what they want, free from ‘significant, non-consensual interfer-
ence’.59 It is the freedom to make decisions about one’s own body, free from
unwanted manipulation. The right to bodily integrity, therefore, protects one’s ability
to make autonomous determinations regarding one’s body. The right enforces the
practicality that ‘every person’s body is inviolate’.60
In the case of R v The Parole Board,61 the court stated that the right to bodily
integrity has always been regarded as the ‘most important of civic rights’ in English
common law. In In re A (Children) (Conjoined Twins: Surgical Separation),62 the
court concluded that the bodily integrity right was ‘the right to have one’s own body
whole and intact and (on reaching an age of understanding) to take decisions about

(1) Everyone has the right to freedom and security of the person, which includes the right—(a) not to be
deprived of freedom arbitrarily or without just cause; (b) not to be detained without trial; (c) to be free from all
forms of violence from either public or private sources; (d) not to be tortured in any way; and (e) not to be
treated or punished in a cruel, inhuman or degrading way. (2) Everyone has the right to bodily and
psychological integrity, which includes the right—(a) to make decisions concerning reproduction; (b) to security
in and control over their body; and (c) not to be subjected to medical or scientific experiments without their
informed consent.
56
Constitution of the Republic of South Africa, Act 200 of 1993 (Interim Constitution). The Interim Constitution has
been repealed. Section 11 reads: ‘(1) Every person shall have the right to freedom and security of the person,
which shall include the right not to be detained without trial. (2) No person shall be subject to torture of any
kind, whether physical, mental or emotional, nor shall any person be subject to cruel, inhuman or degrading
treatment or punishment’.
57
I Currie & J De Waal The Bill of Rights Handbook 6 ed (2013) 286.
58
Ibid 288; C van der Watt ‘The child’s right to self-determination in relation to his/her right to bodily and
psychological integrity’ (2013) LLM diss., North-West University 16.
59
T Douglas & L Forsberg ‘Three rationales for a legal right to mental integrity’ in S Ligthart, D Van Toor,
T Kooijmans et al (eds) Neurolaw: Advances in Neuroscience, Justice & Security (2021) 179, 179.
60
Collins v Wilcock [1984] 3 All ER 374 (QB) 378 (England and Wales High Court appellate decision).
61
R v The Parole Board [2002] EWCA Civ 1641 para 49 (England and Wales Court of Appeal decision).
62
In re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147 258H (Court of Appeal of England and
Wales decision).
 SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS 11

one’s own body’. Therefore, it is clear that the right to bodily integrity protects an
individual’s physical matter and their autonomy to do with it what they freely decide.
The importance of the inclusion of a right to psychological integrity cannot be
understated. Where bodily integrity has always garnered protection and respect
throughout legal history – even in cases of mere touching and/or causing of fleeting
pain – the equal protection of psychological integrity is often legally overlooked.63 As
Hoexter JA stated in Minister of Justice v Hofmeyr:
One of an individual’s absolute rights of personality is his right to bodily integrity. The
interest concerned is sometimes described as being one in corpus, but it has several facets.
It embraces not merely the right of protection against direct or indirect physical
aggression or the right against false imprisonment. It comprehends also a mental element.64
Accordingly, the inclusion of the right to psychological integrity is a vital step
towards the equal protection and privileging of an individual’s psychology.
By proxy of bodily integrity, psychological integrity – and the right thereto – is the
freedom of an individual’s psychological self-determination and the right to be pro-
tected from ‘nonconsensual interference with [an individual’s] mind’.65 In other
words, the right protects the inviolability of the mind. Each individual has a right to
their ‘[m]ental states, thoughts, feelings [and] behavioural dispositions’,66 and to have
these sanctities of the mind protected and not abused, manipulated, or infringed
upon. This often overlooked right, is arguably an invaluable fundamental right of all
human beings.
Philosophically, if an individual finds their mind – as well as their body – unfet-
tered from external (non-consensual) influence, what state do they find themselves
in? Arguably, one of personal authenticity. Without external psychological influences,
be it through chemical or active influences on the brain or pressures from peers and
society, an individual will be left completely in the hands of their own natural incli-
nations and actualisations: they would be ‘getting through the pseudo-self to the Real
Self’.67 Although the reality of this state of personal purity is not necessarily realistic
– as all individuals are influenced by their natural surroundings daily – nonetheless,
there is a human desire to achieve this state.
The law, at the very least, should prevent unjustifiable limitations on an individu-
al’s exploration of their ‘Real Self’. As the right allows for the protection against
unwanted mental persuasions and influences, it is argued that the right to psycho-
logical (and bodily) integrity can be viewed as the right to enable one to be ‘true to
oneself’ in both body and mind – a state of authenticity or self-actualisation.68 This
must, however, carry with it a caveat. Individuals will always be influenced by exter-
nal pressures that may have a preventative effect on self-actualisation. Like bodily

63
C Bublitz & R Merkel ‘Crimes Against Minds: On Mental Manipulations, Harms and a Human Right to Mental Self-
Determination’ (2014) 8 Criminal Law and Philosophy 51, 52.
64
Minister of Justice v Hofmeyr 1993 (3) SA 131 (A) 145, emphasis added.
65
Douglas & Forsberg (note 59 above) 182.
66
Bublitz & Merkel (note 63 above) 52.
67
A Maslow Motivation and Personality (1954) 95.
68
C Bublitz & R Merkel ‘Autonomy and authenticity of enhanced personality traits’ (2009) 23 Bioethics 360, 360;
P Vannini & A Franzese ‘The authenticity of self: Conceptualization, personal experience, and practice’ (2008)
2 Sociology Compass 1621, 1621.
12 S. W. FOSTER

integrity – where an innocent foreign touch of an individual’s body does constitute a

breach of the right – the right to psychological integrity must be handicapped by the
de minimus non curat lex maxim, ensuring that exposure to advertisements or social
engagements do not constitute infringements worthy of legal intervention.
Individual authenticity allows for persons to experience life in the highest, health-
iest, and most meaningful way. Ideally, it is a reality that all of society should strive
to achieve. Bevae Svenson identifies psychological integrity as a presupposition of
psychological identity – arguing that it is psychological integrity ‘which gives man the
possibility of experiencing “life itself”’.69 In striving for authenticity, individuals find
meaning and purpose in their existence – the ‘central task’ of self-actualisation.70
There are dangers in resisting authenticity. Abraham Maslow claims that ‘a person
who gives in eagerly to the distorting forces’ of culture ‘may occasionally be less
healthy than a [person who] … has spunk enough left to resist the breaking of his
psychological bones’.71 The importance of leading an authentic life cannot be under-
stated – ‘authenticity is a fundamental aspect of individuals’ well-being’.72 Resisting
such may endanger an individual to be ‘perceived as a fake’,73 leading to issues in
confidence, self-esteem and social standing.
It is, ultimately, fair to deduce that an individual’s right to pursue their authentic
self should be protected in law and further encouraged. This argument is echoed by
Maslow, who states that ‘perhaps it should be at least one function of education, law,
religion, etc., to safe-guard, foster, and encourage the expression of the [basic] needs
for safety, for love, for self-esteem, for self-actualisation’.74 It is, therefore, safe to
argue that the Constitution should recognise the right to psychological and bodily
integrity as a fundamental right which safe-guards, fosters and encourages an individ-
ual’s pursuit of authenticity.
The right to bodily integrity offers more than protection against non-consensual bod-
ily infringements – it empowers individuals to do with their body what they will, regard-
less of potential hurt or harm. Arguably, the understanding of the freedom of this right
is synonymous with the notion of freedom put forward by Ackermann J in Ferreira
v Levin; Vryenhoek v Powell.75 In Ferreira, Ackermann J understood the right to freedom
(in relation to the right to freedom and security of the person) as the ‘right of individuals
not to have “obstacles to possible choices and activities” placed in their way by [ … ] the
State’. Although Ackermann J’s understanding of freedom as it pertains to the right in
s 12(1) of the Constitution was the minority in Ferreira,76 it is argued that this propos-
ition should find force and favour with the s 12(2) rights.

69
B Svenson ‘Psychological integrity and the concept of biophile’ (1981) 26 Scandinavian Journal of Social Medicine
Supplementum 1, 57.
70
Maslow (note 67 above) 95.
71
Ibid 94.
72
F Gino, M Kouchaki & AD Galinsky ‘The moral virtue of authenticity: How inauthenticity produces feelings of
immorality and impurity’ (2015) 26 Psychological Science 983, 983.
73
K Thacker The Art of Authenticity: Tools to Become an Authentic Leader and Your Best Self (2016) 8.
74
Maslow (note 67 above) 94, emphasis added.
75
Ferreira v Levin; Vryenhoek v Powell 1996 (1) SA 984 (CC) para 54 (footnotes omitted).
76
The matter dealt with the Interim Constitution but remains applicable in understanding s 12(1) of the Constitution.
 SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS 13

The right to psychological integrity, therefore, should protect against both the
non-consensual ‘trespass upon and violation of [an individual’s] right to mental and
intellectual wellbeing’,77 and exploration of their most authentic self. The right to psy-
chological integrity includes ‘positive entitlements’ that materialise as a ‘freedom to
self-determine one’s inner realm, e.g., the content of one’s thoughts, consciousness or
any other mental phenomena’.78
In conclusion, it seems apparent that the rights to both bodily and psychological
integrity, as found in s 12(2) of the Constitution, are, in effect, a right to bodily and
psychological authenticity. Both of these rights protect psychological authenticity but,
fundamentally, also the right to explore the authentic self. Therefore, in the same way
as an individual has the right not to be branded, but has the right to tattoo them-
selves, an individual also has the right to not have their psychology invaded by
unwanted interference, but has the right to pursue the exploration of their own
psychology, as they deem fit.

4. Cognitive liberty and the Constitution

4.1 Understanding cognitive liberty
The mind is a unique mystery which gives every human an unmeasurable amount of
potential, capacity, and individuality. To each individual, their mind is the core to
their being – it should be the most protected aspect of existence. This sentiment was
echoed by the dissenting judgment of Murphy J in the United States of America case
of Jones v City of Opelika: ‘the most tyrannical government is powerless to control
the inward workings of the mind’.79
It is cognitive liberty that advocates for the legal protection of rights needed for
the full utility of the human mind. The notion is closely linked – arguably synonym-
ous – with psychological integrity; however, it differs in a fundamental manner: cog-
nitive liberty requires that individuals be free and legally entitled to positively control
their cognition. Where psychological integrity simply protects an individual’s right to
their own, unfettered psychology, cognitive liberty goes further to argue that individ-
ual should have the right to determine what does and does not affect their mind. As
Nita Farahany cogently explains: ‘[c]ognitive liberty secures authority to individuals
over actions essential to their self-determination’.80
Cognitive liberty does not simply protect an individual’s consciousness, but advo-
cates for the right of that individual to be able to determine how to utilise, alter, or
direct their consciousness. It is the total unchaining of the most essential freedom –
the right to self-determination and control over one’s consciousness. As Richard
Boire elaborates:
The right to control one’s own consciousness is the quintessence of freedom. If freedom
is to mean anything, it must mean that each person has an inviolable right to think for

77
Ferreira (note 75 above) para 146.
78
Bublitz & Merkel (note 63 above) 60, emphasis added.
79
Jones v City of Opelika 319 U.S. 103 (1943) para 618 (Supreme Court of the United States decision).
80
NE Farahany ‘The Costs of Changing our Minds’ (2019) 69 Emory Law Journal 75, 99.
14 S. W. FOSTER

him or herself. It must mean, at a minimum, that each person is free to direct one’s
own consciousness; one’s own underlying mental processes, and one’s beliefs, opinions,
and worldview. This is self-evident and axiomatic.81
Today, many stigmatised drugs – like cocaine and opiates – were ‘common among
upright citizens in America and elsewhere in [ … ] the nineteenth century’.82
Arguably, through criminalisation, society’s view on drugs has become ingrained:
these substances are believed to be toxic, linked with notions of ‘secretiveness, dis-
honesty, stealing and irresponsibility’.83 Although somewhat true, these beliefs are
linked to, and encouraged by, the criminal sanctions attached to these substances –
decisions influenced by political and legislative measures based on rationale which is
not always truly accurate. However, through objective and in-depth assessment, valid
reasons can be found for justifying a challenge on such ingrained beliefs – the likes
of which have been seen before.84
To conclude, cognitive liberty is best defined as ‘the right to choose one’s own cog-
nitive processes, to select how one will think, to recognise that the right to control
thinking processes is the right of each individual person’.85 It is, quintessentially,
a freedom of the mind and the right to explore one’s consciousness without restraint
– the entitlement to ‘make free and competent decisions with respect to’ that which
affects thoughts and consciousness.86 It is an open and accepted standard that every-
one has the unfettered right to control their bodily processes – and any non-consen-
sual invasion of a person’s bodily autonomy may amount to an infringement of
a human right. Cognitive liberty simply applies the same privileges awarded the body
to the mind.

4.2 How the Constitution provides for cognitive liberty

Arguably, cognitive liberty is evidently interlinked with the right to psychological
integrity, as afforded by s 12(2) of the Constitution. Interpreted widely, the right to
psychological integrity essentially provides for cognitive liberty, insofar as it allows
individuals control over their consciousness. Cognitive liberty provides a foundation
to many fundamental human rights – human dignity, psychological integrity, privacy,
belief and opinion, and expression.87 Accepting cognitive liberty as a right worthy of

81
RG Boire ‘On Cognitive Liberty (Part 1)’ (2001) 2 Journal of Cognitive Liberties 7, 10.
82
Gross & Duke (note 44 above) 4.
83
Ibid.
84
For example, the unjustifiable societal stigmatisation or/and criminalisation of: homosexuality (declared
unconstitutional in National Coalition for Gay and Lesbian Equality v Minister of Justice [1998] ZACC 15), cannabis
(the private use by an adult was declared unconstitutional in Prince (note 38 above)), abortion (declared legal by
the Choice on Termination of Pregnancy Act 92 of 1996, and upheld in Christian Lawyers Association v Minister of
Health 2005 (1) SA 509 (T)), male primogeniture (declared unconstitutional in Bhe v Magistrate, Khayelitsha; Shibi v
Sithole; SA Human Rights Commission v President of the RSA 2005 (1) SA 580 (CC)) and, racism (evident throughout
the Apartheid era, despite no scientific or academic justification). Similar arguments may apply to the continued
criminalisation of crimes like incest, bestiality, and other drugs, being based on moral and/or paternalistic reasons,
supported through societal stigmatisation.
85
A Weil The Natural Mind: An Investigation of Drugs and the Higher Consciousness (1998) 140.
86
S Ali ‘Brain-computer-interfacing & respondeat superior: Algorithmic secisions, manipulation, and accountability in
armed conflict’ (2021) 29 Catholic University Journal of Law and Technology 1, 26.
87
Sections 10, 12(2), 14, 15 and 16 of the Constitution.
 SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS 15

protection and enforcement under s 12(2) of the Constitution, would be congruent

with a constitutional context that allows for the enforcement of these related rights.
Section 12(2) of the Constitution allows for additional manifestations of the right
through the use of the word ‘includes’.88 However, it is further proposed that the
right to cognitive liberty may already be inferred from the provisions in s 12(2)(b) of
the Constitution – ‘to security in and control over their body’.
The issue here is to deduce if the mind/psychology/conscious may be included in
a reasonable interpretation of body. Narrowly interpreted, body may be said to only
amount to the physical flesh of a human being. However, this section was never
intended for narrow interpretation, as was noted by Liora Lazarus: ‘[s 12(2)(b)] is
probably the most extensively defined autonomous, express and justiciable right to
security in any constitutional document around the world’.89 Due regard must be
given to the context of the word body, which in this case falls under the sub-heading
of the right to bodily and psychological integrity. Taking this context into account,
therefore, the interpretation of body in s 12(2)(b), seems to be inclusive of the mind.
To provide a right to security in and control over only one’s physical body would
undermine the purpose of s 12(2), which evidently protects the psychological, too.
Accordingly, it is submitted that the constitutional interpretation of s 12(2)(b)
should be that everyone has the right to security in and control over their body and
mind. In Natal Joint Municipal Pension Fund v Endumeni Municipality, the Supreme
Court of Appeal established the new approach to statutory interpretation.90 The
Endumeni approach is centred on a holistic interpretation of the meaning of the lan-
guage used, within its presented context, taking into consideration the background
information of the clause. This differs from the old approach – a stepped assessment
that placed more weight on the meaning of the language used, with proportionately
less weight on the other consideration. In following the new approach, a holistic
interpretation of s 12(2) ought to allow for the inclusion of and mind, so not to
deprive individuals of the right to security in and control over their mind.
Despite the presence of academic debate, it is propositioned that the Endumeni
approach is constitutionally viable, in accordance with s 39(1)(a) of the Constitution,
empowering an interpretation premised on the fundamental values of ‘an open and
democratic society based human dignity, equality and freedom’. Accordingly, the pro-
posed interpretation of s 12(2) ought to comply with the Constitution, insofar as an
interpretation which excludes protection of the mind would fail to promote the values
of an open and democratic society. As Khampepe J fittingly remarks:
[The Constitutional Court] has adopted a purposive and contextual approach to
interpreting the Constitution. In doing so, we are enjoined to provide a broad and
generous reading in determining the ambit of constitutionally enshrined rights. Because
of the inclusion of the limitation clause in s 36, rights should not be interpreted in
a miserly fashion.91

88
Ferreira (note 75 above) para 89.
89
L Lazarus ‘Mapping the right to security’ in B Goold & L Lazarus (eds) Security and Human Rights (2007) 325, 336.
90
Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) para 18.
91
AB v Minister of Social Development 2017 (3) SA 570 (CC) para 54.
16 S. W. FOSTER

It is, therefore, apparent that recognising and protecting the right to security in and
control over one’s mind is congruent with the theory of cognitive liberty. It has been
found that the Constitution does provide for cognitive liberty through s 12(2). This is
found either as an additional manifestation of the right to psychological integrity, or
in terms of a holistic interpretation of s 12(2)(b).

5. Proving a constitutional infringement

5.1 The issue of AB v Minister of Social Development
A possible concern for this section’s proposed argument is the judgment in AB
v Minister of Social Development, specifically regarding how the criminalisation of the
consumption of psilocybin mushrooms may infringe one’s s 12(2) rights. This matter
addressed the constitutionality of s 294 of the Children’s Act 35 of 2005, which pro-
hibited single parents from concluding a surrogacy agreement where they were unable
to produce their own gamete. Of interest is the court’s different approaches to inter-
preting the right to bodily and psychological integrity.
The AB majority argued that s 12(2) had to be interpreted in line with its origin –
s 11 of the Interim Constitution – which held that the ‘primary purpose of the right
was to “ensure that the physical integrity of every person was protected”’.92 The
majority reasoned that bodily and psychological integrity have historically been
‘inextricably linked’ and, therefore, ‘any limitation of autonomy [ … ] is only an
infringement of s 12(2)(a) if it invokes both psychological integrity and bodily integ-
rity; and not if it only impacts upon psychological integrity’.93 Accordingly, the
majority interpreted s 12(2) to be a continuation of s 12(1), concluding that one’s
bodily and psychological integrity must be infringed for a violation in terms of
s 12(2) to occur.
The minority disagreed, arguing that s 12(2) ‘provides for a new, freestanding and
definitionally-proscribed freedom right’.94 In justifying this, Khampepe J notes that
the Bill of Rights should be interpreted broadly, explaining that rights remain subject
to the scrutiny of the limitations clause. To interpret rights narrowly would, accord-
ingly, be restricting and unreasonable.95 In separating s 12(1) and (2), the minority
develops ‘a new understanding of “freedom and security of the person” that demon-
strates respect and attentiveness to the decisions of others. The inclusion of s 12(2) is
one facet of this new approach’.96
In relation to my arguments, the majority’s reading would allow for legislation to
limit psychological integrity where bodily integrity is not violated. In line with this, it
may be argued that banning the consumption of psilocybin is not an infringement of
one’s bodily integrity. It shall, however, be argued that the majority’s interpretation of

92
Ibid para 309, emphasis added.
93
B Shozi ‘Something old, something new: Applying reproductive rights to new reproductive technologies in South
Africa’ (2020) 36 South African Journal on Human Rights 1, 9–10, emphasis added.
94
AB (note 91 above) para 59.
95
Ibid para 62.
96
Ibid para 67.
 SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS 17

s 12(2) is lacking, in regard to their original interpretation and the possible implica-
tions it may have on the consumption of psilocybin.
First, as Bonginkosi Shozi elaborates, the ‘plain reading of the text of s 12(2) neces-
sitates that we view bodily and psychological integrity as two separate concepts, each
applicable to subsections (a), (b) and (c) in their own right’.97 This way of reading is
in line with the Constitution. Take s 27(1)(b) of the Constitution for example, which
states that everyone has the right to have access to sufficient food and water.
Through the majority’s reading, legislation enacted to provide access to sufficient
food only, would violate this right, insofar as it neglects to address access to sufficient
water, too. This cannot be the case – the correct reading must be that everyone must
have sufficient access to both food and water, as separate concepts.
Second, the majority erred in leaving judgment open on whether s 12(2)(a) alone
would be restricted to bodily harm, whereas s 12(2)(c) would not.98 This anomaly
places doubt in the strength of their argument, as there is nothing in the section to
indicate a separation of treatment between (a), (b), and (c). Furthermore, this judg-
ment fails to understand the true purpose of s 11 of the Interim Constitution,
neglects to appreciate the difference between s 12 and its predecessor, and takes an
archaic view to reproduction being limited to the body.99
Finally, to their rejection of the autonomy of psychological integrity, the majority
seemingly failed to recognise the well-observed protection of psychological integrity
found within the state’s law of delict. As Khampepe draws from NM v Smith,100 there
is protection afforded to the ‘harm that emerges from the psychological stress caused
by the removal of the applicants’ choice’.101 As has been shown, it cannot be that psy-
chological integrity is relegated below that of bodily integrity – such an understand-
ing cannot be constitutional.
However, the majority’s judgment – should it be the correct interpretation of
s 12(2) – may not be detrimental to my arguments with regard to s 12(2)(b). In this
instance, it appears that s 12(2)(a) does not extend to an individual who wishes to
exercise this right using the body of another. Currently, the law prohibits individuals
from consuming psilocybin mushrooms. This would appear to be a prohibition on
one’s choice relating to their own body – that being the right to choose what to con-
sume. According to the AB majority, this would still amount to an infringement on
one’s bodily integrity, and the choice and control they have over their body.102
Consequently, the minority’s interpretation is preferred, and would allow for the
detachment of psychological integrity from bodily integrity. This would allow for
a irect attack on legislation which violated psychological integrity – or cognitive lib-
erty as argued – but not bodily integrity. However, in keeping with the majority of
AB, it has also been propositioned that prohibiting what one may consume may be

97
Shozi (note 93 above) 10.
98
AB (note 91 above) para 76, read with judgment’s footnote 74.
99
Shozi (note 93 above) 11–12.
100
NM v Smith 2007 (5) SA 250 (CC) para 40.
101
AB (note 91 above) para 69, emphasis added.
102
Ibid paras 312–315.
18 S. W. FOSTER

a limitation of bodily integrity and would be susceptible to a limitation of rights ana-

lysis, too.

5.2 Cognitive liberty in the Constitution

It would be simple to apply inductive reasoning and find that, as in Prince, psilocybin
mushrooms should be decriminalised based on the right to privacy.103 However, the
arguments put forward in this article seek to introduce the legitimacy of the right to
cognitive liberty to South African legal academia, as established in terms of s 12(2) of
the Constitution. It is hoped that the recognition of the right to cognitive liberty may
provide a basis upon which future claims may be brought by adult citizens who wish
to explore their cognitive liberty unimpeded by legislation.
As Boire appropriately affirms, ‘cognitive freedom is so self-evidently a basic
human right’,104 one which the Constitution provides for. It has been argued that
cognitive liberty is an independent extension to s 12(2); alternatively, that cognitive
liberty is included in s 12(2)(b), through the constitutional interpretation of the sec-
tion to include the mind as an extension of the body. Regardless of the avenue, there
are persuasive arguments to be made that the Constitution provides for the freedoms
and protection associated with the theory of cognitive liberty.
The right to cognitive liberty provides, inter alia, that everyone be afforded secur-
ity in and control over their own minds. Consequently, as per the theory of cognitive
liberty, individuals have the constitutionally protected right to explore their mind as
they deem fit. Psychedelics are considered to be a ‘powerful tool for self-discovery
and understanding consciousness’,105 and should be available for individuals to utilise
in the exercising of their own cognitive liberty, insofar as these benefits outweigh the
potential risks psilocybin may have on the user and those around them.
It follows that the criminalisation of psychedelic substances such as psilocybin
mushrooms is a prima facie infringement upon the right of s 12(2) of the
Constitution. Of course, the acceptance of this theory and its right would be suscep-
tible to limitation; however, only if it is constitutionally justified in terms of s 36 of
the Constitution.106

6. Limitation of rights analysis

Having concluded that the Constitution provides for cognitive liberty and that the
criminalisation of psilocybin mushrooms constitutes a prima facie infringement
thereof, it must now be shown that the nature and importance of the right to cogni-
tive liberty, as found in s 12(2) of the Constitution, weighs heavier than the import-
ance and purpose of the limitation – the criminalisation of psilocybin mushrooms as

103
See further: SW Foster ‘The right to privacy in the decriminalisation of psilocybin mushrooms in South Africa’
(2023) 27 Law, Democracy & Development 1–30.
104
Boire (note 81 above) 11.
105
TM Carbonaro & M Gatch ‘Neuropharmacology of N,N-dimethyltryptamine’ (2016) 126 Brain Research Bulletin 74,
75 – discussing DMT.
106
Section 12(2)(b) does not fall under the ambit of non-derogable rights as per s 37(5)(c) of the Constitution.
 SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS 19

per the criminalising sections in Drugs Act and Medicines Act – both of which are
laws of general application. Section 36(1) of the Constitution provides:
The rights in the Bill of Rights may be limited only in terms of law of general
application to the extent that the limitation is reasonable and justifiable in an open
and democratic society based on human dignity, equality and freedom, taking into
account all relevant factors, including—a) the nature of the right; b) the importance of
the purpose of the limitation; c) the nature and extent of the limitation; d) the
relation between the limitation and its purpose, and; e) less restrictive means to
achieve the purpose.
Having accepted that the criminalising legislations are laws of general application,
it must be determined whether the limitation is reasonable and justifiable in an open
and democratic society based on human dignity, freedom, and equality. A s 36 ana-
lysis, therefore, requires a proportionality or balancing exercise.107 Lastly, having
proved an infringement, the burden of justification would fall upon the state.108

6.1 The nature and importance of the right to cognitive liberty

6.1.1 The nature of the right limited
The right to cognitive liberty falls under the right to freedom and security of the per-
son, specifically the right to bodily and psychological integrity. This right is afforded
to everyone. The right contains no internal qualifiers, making it only limitable
through a s 36 limitation. Furthermore, the nature of cognitive liberty – being the
right to control over one’s own consciousness – is intrinsically linked to other funda-
mental rights.

6.1.2 The importance of the right limited

The right to cognitive liberty is unquestionably important, premised upon the free-
dom and control of an individual’s mind. As Farahany articulates, ‘cognitive liberty is
the interest upon which many of our most cherished freedoms are secured’, it
‘encompasses freedom of thought and rumination, the right to self-access and self-
alteration, and to consent to or refuse changes to our brains and our mental experi-
ences’.109 Intrinsically linked to psychological integrity, the right provides everyone
the opportunity to exercise their mental freedoms.
Furthermore, in an open and democratic society, the right to psychological free-
dom – freedom of thought, self-determination, mental autonomy – is arguably ‘so
self-evident that its codification is meaningless’.110 Without the adequate recognition,
protection, and participation in the right, members of society will render themselves
uninquisitive followers, forever maintaining the status quo, for good or for bad, better
or for worse. This is not the manner in which society animates transformation.

107
P de Vos, D Brand, W Freedman et al South African Constitutional Law in Context (2014) 363.
108
Moise v Greater Germiston Transitional Local Council: Minister of Justice and Constitutional Development Intervening
2001 (4) SA 491 (CC) para 19 states ‘once a limitation has been found to exist, the burden of justification under s
36(1) rests on the party asserting that the limitation is saved by the application of the provisions of the section’.
109
Farahany (note 80 above) 75, 98.
110
Bublitz & Merkel (note 63 above) 64.
20 S. W. FOSTER

South Africa’s Constitution – in necessitating effective transformation – demands

public participation,111 by ensuring that ‘South Africa’s democracy contains both rep-
resentative and participatory elements. These elements are not mutually exclusive.
Rather they support and buttress one another’.112 As Sachs J stated in Doctors for Life
International v Speaker of the National Assembly, ‘[p]ublic involvement accordingly
strengthens rather than undermines formal democracy, by responding to and negat-
ing some of its functional deficits’.113 Therefore, to give maximum effect to the trans-
formative ideals of the Constitution, society must be allowed full utility of the right
to cognitive liberty. Any limitation of an individual’s freedom of mind limits their
capacity to engage critically, handicapping societal transformation. Evidently, the right
to cognitive liberty is important in light of the Constitution.

6.2 The importance and purpose of the criminalisation of psilocybin mushrooms

Both the Drugs Act and the Medicines Act prohibit the use, possession, and cultiva-
tion of psilocybin mushrooms. This prohibition is deemed an important mechanism
in adequately preventing and deterring persons from taking a potentially dangerous
substance. As psilocybin is listed as an undesirable dependence-producing substance
in both the Drugs Act and the Medicines Act, this prohibition is considered logical.
The purpose of the criminalisation is to conform to international law drug standards
and to punish offenders for the harm which they may cause themselves or society, in
using, cultivating, and/or supplying psilocybin mushrooms.
As was stated in Prince v President, Cape Law Society,114 the purpose of the limita-
tion is based in state ‘control’ over the use, consumption, and dealing in, of a depend-
ence-producing substance, in order to adhere to international legal obligations. I have
assessed the justifiability of the international legal obligations which are protected by
the limiting statutory provisions. However, it has been determined that the genesis of
the criminalisation of psychedelic substances, although replete with concerns and cau-
tions, appears to have been underpinned by a political agenda – the effect of which
was to limit research relating to, and consumption of, psychedelic substances.
Nevertheless, the properties of the limitation must be assessed. To do so, empirical
data must play a role – sentiment which the AB majority challenged – stating ‘courts
do not rely on the opinions or “credible data” by experts when determining the con-
stitutionality of legislation’.115 This cannot be the case in instances where the legitim-
ate purpose of the legislation is being attacked. As Donrich Thaldar argues,
‘purposive construction [of an impugned provision] in abstract isolation – unin-
formed by credible real-world data – cannot provide an answer to the constitutional
question of rationality’ – that being whether the impugned provision does, in

111
Sections 59, 72 and 118 of the Constitution.
112
Land Access Movement of South Africa v Chairperson, National Council of Provinces 2016 (5) SA 635 (CC) para 57.
113
Note 53 above 234.
114
Prince v President, Cape Law Society 2002 (2) SA 794 (CC) para 141.
115
AB (note 91 above) para 291.
 SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS 21

actuality, serve the intended legitimate governmental purpose.116 Accordingly, in

determining whether the criminalisation of psilocybin mushrooms serves its govern-
mental purpose of controlling the use, consumption, and dealing in, of a dependence-
producing substance, empirical data ought to be considered.
Accordingly, the preventative influence in play is that of the potential harm caused
by psilocybin mushrooms. The state’s intention is that of preventing citizens from
unwanted drug-related harms, such as addiction, mental illness, and/or misuse. To
date, psilocybin mushrooms have limited evidence of being a toxic, poisonous, or
‘dependence-producing’ substance. Instead, the toxicity of psilocybin is considerably
low, rarely leads to psychotic symptoms, and no lethal overdose is known.117 In
a South African study on drug-use fatalities, ‘[n]o positive results were reported in
respect of [ … ] psilocybin’ – indicative of psilocybin not being a deadly substance.118
Furthermore, evidence suggests that use of hallucinogens, such as psilocybin mush-
rooms, ‘virtually never leads to the development of classic dependence syndromes’,
and users ‘do not experience withdrawal symptoms’.119
On the contrary: research has shown that psilocybin mushrooms may instead elicit
‘antidepressant and anti-addictive effects’,120 with evidence showing that the substance
enjoys high rates of success in dealing with addiction.121 Furthermore, with regard to
mental health issues, psilocybin mushrooms, again, show promise as a medicinal aid,
rather than a cause. David Nutt remarks that a ‘single psychedelic experience could
produce profound and enduring mental health benefits’ in patients suffering from
anxiety, depression, and existential distress.122 Nutt further states that it is ‘the safety
and ease of practical use of psilocybin that has led to it being resurrected in a series
of psychological, psychopharmacological, imaging, and small pilot clinical studies’.123
As for the arguments regarding abuse/misuse, it is debatably hypocritical to crim-
inalise psilocybin mushrooms out of fear of misuse, accepting that alcohol and
tobacco are frequently abused, yet both substances remain legal. More so, the result
of misuse of psilocybin mushrooms – dysphoric experiences – is firmly due to set
and setting, whereas alcohol and tobacco misuse is due to the person.124 The import-
ance of prevention, therefore, has limited rational connection to the purpose of the
limitation, as research suggests that with responsible psilocybin mushroom use – use

116
DW Thaldar ‘Post-truth jurisprudence: the case of AB v Minister of Social Development’ (2018) 34 South African
Journal on Human Rights 231, 250–251.
117
J Halpern, J Suzuki, PE Huertas & T Passie ‘Hallucinogens’ in B Johnson (ed) Addiction Medicine: Science and
Practice (2010) 1083, 1089.
118
J Liebenberg, L du Toit-Prinsloo, V Steenkamp & G Saayman ‘Fatalities involving illicit drug use in Pretoria, South
Africa, for the period 2003 – 2012’ (2016) 106 South African Medical Journal 1051, 1053.
119
Ibid.
120
Calvey (note 14 above) 3.
121
Psilocybin mushrooms have delivered promising results in studies of addiction to nicotine and alcoholism (MW
Johnson, A Garcia-Romeu & RR Griffiths ‘Long-term follow-up of psilocybin-facilitated smoking cessation’ (2017)
43 The American Journal of Drug and Alcohol Abuse 55, 55-60); Johnson et al (note 4 above) 85; Pollan (note 10
above) 358–374.
122
D Nutt ‘Psilocybin for anxiety and depression in cancer care? Lessons from the past and prospects for the future’
(2016) 30 Journal of Psychopharmacology 1163, 1163.
123
Ibid (references omitted).
124
<https://www.youtube.com/watch?v=KuhmZSFvhL0>.
22 S. W. FOSTER

which is ‘safely managed with safeguards in place’ – the risk of harm is largely miti-
gated, with the potential for benefit increased.125
It would be short-sighted to outright disregard the potential for psilocybin mush-
room misuse. There may be possible harms which are yet to be well documented out-
side of the research clinic. As such, although perhaps contradictory, there may be
weight given to the state erring on the side of caution. With the importance of set
and setting in psilocybin use not being fully understood and regularly communicated
to the general public, it may be considered wise to regulate the substance until such
time as research can offer clearer advice on safe psilocybin use. However, in making
such a concession, there should also be a duty on the state to ease prohibitions so
that further research can be conducted, and in time, a more accurate assessment of
the potential unpredictable harms of psilocybin mushrooms can be made. The state
should not act in a knee-jerk and paternalistic fashion, unquestioningly and uncondi-
tionally prohibiting psilocybin mushrooms outright without allowing for the oppor-
tunity and possibility of critical (re)assessment.
As it has been established that psilocybin mushrooms carry considerable benefits
against limited-to-no harm – both to the individual and to society – it would be
unjustifiable to punish the use, possession, and/or cultivation on the basis of retribu-
tion. However, it must be noted that, even should psilocybin mushrooms carry a risk
of harm to the individual user, competent adults ought still to be allowed to assume
the risks on the basis of volenti non fit injuria – consenting to the risk of harm. For
the state to limit competent adults’ freedom to assume the risk of consuming psilo-
cybin mushrooms and further punish them criminally for doing so, reduces adults to
‘children’ of the paternalistic state.126 Arguably, this paternalistic attitude is an unsuit-
able approach in the current constitutional dispensation – the state should not be
authorised to punish competent adults who consent to the risk of consuming psilo-
cybin mushrooms.
As for deterrence, the current criminalising legislation has certainly deterred the
use, possession, and cultivation of psilocybin mushrooms. The majority of citizens
will not be exposed to psilocybin mushrooms, due to their criminalisation. These
mushrooms have successfully been marginalised from general society, with those who
wish to engage with psilocybin mushrooms having to source them through
‘underground’, illegal means. Furthermore, for better or for worse, their criminalisa-
tion has immensely reduced the academic research and media attention of psilocybin
mushrooms, rendering the large majority of South African society deterred and disin-
terested. This, however, may change as psychedelics seem to be experiencing
a ‘modern renaissance’.127 For individual deterrence, it is argued that the criminalis-
ing legislation has had success, except from deterring determined individuals. Their
availability is such that even pensioners have access.128

125
Johnson et al (note 4 above) 85.
126
Feinberg (note 51 above) 105.
127
Pollan (note 10 above) 21-81.
128
South Africa’s ‘unlikely public activist for sacred mushrooms’ (M Thamm ‘Ambrosini’s ghost: The ongoing
challenge to decriminalise dagga and other sacramental substances’ (28 January 2015) Daily Maverick; referring
to Monica Cromhout.
 SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS 23

Ultimately, it can be conceded that the criminalising laws do have a deterrent

effect. However, despite the evidentiary deterrence, it is contended that the state is
required to present ‘more’ compelling evidence to justify that the prohibition has the
deterrent effect desired – a hurdle which may not be cleared with the current levels
of deterrence.129 What may be acceptable in this instance is a less restrictive regula-
tion of psilocybin mushrooms. It is advised that the scheduling of the implicated psy-
chedelic substances be reassessed. Re-categorising them as a lower scheduled
substance would be more acceptable in this context. This would make academic
research accessible, allowing for a more accurate and detailed understanding of psilo-
cybin mushrooms. However, it remains prudent that regulations stay in place for
minors and potentially at-risk individuals, while there remains limited research.

6.3 Justifiability assessment

The nature and extent of the limitation encroaches upon an individual’s fundamental
human rights implicated in the right to cognitive liberty. The limitation, put simply,
is not justifiable in a democratic society based on human dignity, equality, and
freedom. As regards drugs, the ‘task of policymakers is to assess the relative risks of
illegal drugs and compare those risks to others we take – or permit others to take –
with hardly any qualms’.130 This rational assessment is not undertaken by the legis-
lature in its approach to controlled substances – evidenced by the legality of, for
example, alcohol and tobacco. As Charlotte Walsh enlightens: the ‘distinction
between legal and illegal substances is not unequivocally based on pharmacology,
economic or risk benefit analysis. It is also based in large part on historical and
cultural precedents’.131
Notably, the criminalisation of psilocybin mushrooms has long been based on
a fallacy, rather than science and academic certainty. The continued criminalisation is
‘hobbled by a host of systematic and psychologically stubborn biases of reason and
emotion. And these biases persist even when there are no limits on the evidence
made available to the decision-makers’.132 The criminalisation is still heavily linked to
reasons dissociated with the reality presented by scientific evidence. The war on drugs
agenda remains an unpersuasive, yet persistent, justification to uphold the prohib-
ition, despite the evidence suggesting that psilocybin mushrooms are not toxic and
deadly to the user or society, but could rather be beneficial if utilised correctly.
In weighing up the nature and importance of the right to cognitive liberty against
the importance and purpose of the limitation, it is evident that the infringement
upon the right to cognitive liberty is not one which is justifiable in an open and
democratic society based on human dignity, equality, and freedom. The continued
belief that ‘there can be little doubt about the importance of the limitation in the war

129
Teddy Bear Clinic for Abused Children v Minister of Justice and Constitutional Development (1) SACR 327 (CC)
para 88.
130
Gross & Duke (note 44 above) 2.
131
C Walsh ‘Drugs and human rights: private palliatives, sacramental freedoms and cognitive liberty’ (2010) 14 The
International Journal of Human Rights 425, 435.
132
J Trout ‘Paternalism and cognitive bias’ (2005) 24 Law and Philosophy 393, 393.
24 S. W. FOSTER

on drugs’,133 can no longer hold the same weight it once did. As the renaissance of
psychedelics develops, historical and current evidence of the benefits of psilocybin
mushrooms continue to disprove the societal beliefs connected to the fungi. In add-
ition, with an increased recognition and protection of the rights afforded in terms of
s 12(2) of the Constitution, specifically the right to cognitive liberty allowing citizens
to take active steps in how they exercise self-determination over their mind, it is
premised that there is sufficient evidence to justify the weighing in favour of decrim-
inalisation, with regulations.

7. Conclusion
Psilocybin mushrooms, alongside their psychedelic cousins, have co-existed with the
human species for millennia. Our ancestors have dieted on them, worshipped them,
learnt from them, and respected them. Over the past fifty-plus years, psilocybin
mushrooms have been criminalised and ostracised by society. This decision has hin-
dered further academic and scientific research into the plethora of potential health
and wellbeing benefits associated with the fungus, as well as any potential harms. As
politician Cori Bush stated upon introducing a health-centred approach drug reform
and decriminalisation Bill: ‘[i]t’s time to put wellness and compassion ahead of
trauma and punishment’.134
The theory of cognitive liberty was put forward as a constitutional basis upon
which to challenge the criminalisation of psilocybin mushrooms. An understanding
of psychedelic substances has been detailed, briefly showcasing the interconnected
history they share with the human species, what they are, and the potential effects
they have on the human brain. The international and domestic geneses of their crim-
inalisation was addressed, providing clarity on important sections of the Drugs Act
and Medicines Act, as well as elucidating upon the paternalistic presence associated
with the prohibition of psychedelics in South Africa. Further, an assessment of s 12
of the Constitution was presented, explicating that s 12(2) provides for the right to
bodily and psychological authenticity – catering for both the protection and explor-
ation of one’s bodily and psychological integrity. Notably, the theory of cognitive lib-
erty has been explained, as well as how the right to cognitive liberty may be
contained in, or found under, s 12(2) of the Constitution, through either a broad
interpretation of s 12(2)(b), or via an additional manifestation of the right to psycho-
logical integrity.
Finally, having addressed concerns raised in AB, it was determined that the crim-
inalisation of psilocybin mushrooms may infringe upon the right to cognitive liberty.
Accordingly, a limitation of rights analysis was conducted to show how the nature
and importance of the right to cognitive liberty weighs heavier than the importance
and purpose of the limitation served by the criminalisation of psilocybin mushrooms.

133
Prince v President, Cape Law Society (note 114 above) 52.
134
M Sutton ‘US House representatives Bonnie Watson Coleman & Cori Bush introduce federal Bill to decriminalize
drug possession, replace with health-centered approach’ (17 June 2021) Drug Policy.
 SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS 25

South Africa criminalised psilocybin mushrooms on the basis of very little inde-
pendent research and evaluation. In doing so, the state has failed to uphold its obliga-
tions in respect of the progressive rights afforded by s 12(2), which empower
individuals with the right to security in and control over their minds. In the current
constitutional dispensation, premised on a culture of justification, it is argued that the
state, through the criminalisation of psilocybin mushrooms, has failed to adequately
justify its decision-making and subsequent infringement of a fundamental right.

Acknowledgements
This article has benefited greatly from Prof. Geo Quinot, Dr Mary Nel, David Foster, and John
Woolner, whose generous advice and support aided my thoughts on earlier drafts. All argu-
ments and errors remain my own. This article originates from a dissertation written in fulfil-
ment of my LLB degree.

Disclosure statement
No conflict of interest has been reported by the author.

Notes on contributor
Sebastian William Foster, LLB candidate, Stellenbosch University, Stellenbosch, South Africa

ORCID
Sebastian William Foster http://orcid.org/0000-0001-5908-6177