TO WEED, OR NOT TO WEED … THAT IS THE QUESTION

 

Let’s be honest: many of us have been left feeling a little confused (or excited if you’re that way inclined) by the recent Constitutional Court Judgement regarding the use of cannabis in one’s home. Numerous people have taken this as a free pass to have at it and “relive the glory days” while others have found solace in the fact that their secret medical treatment pot plant on their back stoep can now be freely tended to without worry.

In brief, the Constitutional Court Judgement that has been on everyone’s radar for the past month saw a number of parties being involved – each having their own submissions on whether or not the personal use, possession and cultivation of marijuana in one’s own home should be decriminalised. Argument was presented from all these parties when the matter was heard back in November 2017 and the much anticipated outcome was finally handed down in September of this year. Essentially, what the judgement means for the everyday person is this: the criminalisation of personal consumption, possession and cultivation of marijuana in one’s own home is inconsistent with Section 14 of the Constitution i.e. the right to privacy. Important here is that the Court provided interim relief, which operates during the 24-month suspension, that will make it unlawful for the police to arrest adults who privately cultivate, possess or use marijuana.

“Yeah, so, now what?”

This article focusses on the implications that this Judgement has on individuals who are owners in sectional title schemes. It is particularly important that you equip yourselves with more information before blazing up on your balcony this evening. The practical concern seems to be that Sectional Title Schemes, being inherently communal in nature, are faced with the daunting task of deciding how this ruling applies to them. The simple answer to the conundrum can be drawn from the already established property law principles governing Sectional Titles, i.e. The Sectional Titles Act. Although the Con-Court Judgement’s outcome at present is admittedly full of grey areas, the Sectional Title owner has some direction in the uncertainty.

In a Sectional Title, your own home or ‘private area’ would include your Section on the property (which Section is registered in your name according to the Deeds Registry Records) as well as any registered exclusive-use area or one created by the Conduct Rules of the Sectional Title Scheme. So then, for example, lighting up a joint in your living room would qualify as private use. Likewise, taking a stroll onto your balcony joint in hand and enjoying the afternoon breeze would also fall into this category (provided of course that your balcony is in fact an area for your exclusive use and not actually common property). While we’re on the topic of exclusive use areas, it would be careless not to mention that the same applies to ‘private’ garden spaces. This is, for obvious reasons, slightly more challenging as although a particular garden area may be registered to you or be yours in terms of the Scheme’s Conduct Rules, it would appear that cultivating the green herb alongside your pansies may not be such a great idea – especially since the neighbour’s kid is always riding his tricycle pass it. It goes without saying that where gardens are deemed common property in the Scheme that the use thereof for cultivation is prohibited.

Another consideration that would be important would be that of a Duplex in a Sectional Title Scheme set up. Again, the owners of the respective partitions are legally entitled to smoke marijuana in the privacy of their own living space. The problem comes in where the individual above you starts to complain that the odour of the cannabis is too much to bare and requests that you cease immediately. Would you be out of line telling your neighbour that you won’t stop smoking and he can’t make you? Well, the long and short of it is that Rule 30 (e) of the Sectional Titles Schemes Management Act states that owners and/or occupiers of Sectional Title units or exclusive use areas are to refrain from doing anything within these areas that that would have an adverse effect on the value or use of any other Section or exclusive use area. So then, where your cannabis smoke and / or odour becomes a bother to your neighbour you may have issues to deal with.

It is then easy to understand why this Judgement has, unfortunately, raised more questions around the topic than solve the issue that was presented. This is not to say that our Justices presiding over the matter erred in their decision, however, it would have probably done a world of good if a bit of direction was given while the creases are being ironed out. In the interest of erring on the side of caution, it would probably be advisable that each person’s discretion be exercised in a manner that is perhaps more conservative – at least for the time being anyway.

For more information on this or any other legal related queries please contact us at professionals@randles.co.za or 033 392 8000

BY: Shian Lee Heynes – Attorney at Randles Inc.

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