Cannabis has historically been criminalised in South Africa. It has, until recently, been a criminal offence to possess, cultivate or use cannabis. However, this position was drastically altered by a ground-breaking unanimous judgment by the Constitutional Court in the case of Minister of Justice and Constitutional Development and Others v Prince late last year.
This case came before the Constitutional Court as part of confirmatory proceedings in terms of section 167(5) of the Constitution after the Western Cape High Court declared certain sections of the Drugs and Drug Trafficking Act and the Medicines and Related Substances Control Act inconsistent with the right to privacy as enshrined in section 14 of the Constitution. The Court furthermore ordered Parliament to cure this constitutional defect within 24 months.
The right to privacy can be defined as the right to live and enjoy one’s life with a minimum of interference. Deputy Chief Justice Raymond Zondo who penned the Constitutional Court’s judgment agreed with this definition when he stated that, “It can legitimately be said that the right to privacy is a right to be left alone.” This case thus essentially raised the question of whether or not the State can interfere with what you do in private if such private act does not adversely affect others. The Court found the privacy argument convincing and accordingly found that the prohibition of the mere possession, use or cultivation of cannabis by an adult in private for his or her personal consumption is inconsistent with the right to privacy provided for in section 14 of the Constitution.
It is important to note that the Court did not legalise cannabis as a substance. It was merely decriminalised to the extent that adults may now grow their own cannabis and use it in a private space. The Court, with reference to the cultivation thereof, stated:
“An example of cultivation of cannabis in a private place is the garden of one’s residence. It may or may not be that it can also be grown inside an enclosure or a room under certain circumstances. It may also be that one may cultivate it in a place other than in one’s garden if that place can be said to be a private place.”
The Court did not, however, state what would constitute a private space for purposes of using or cultivating cannabis. It is thus unclear whether or not a private space is limited to one’s dwelling or whether it can include spaces such as motor vehicles or other privately-owned spaces such as restaurants or festival grounds. This is thus something that Parliament will most probably clear up when enacting the legislation as discussed above.
It is of utmost importance to note that the commercialisation of cannabis has not been legalised. It is thus still a criminal offence to cultivate cannabis for commercial purposes or to trade with cannabis. The Court stated in this regard that, “[D]ealing in cannabis is a serious problem in this country and the prohibition of dealing in cannabis is a justifiable limitation of the right to privacy.” The right to privacy as it relates to the use of cannabis is furthermore limited in that the use thereof in the presence of children or non-consenting adults are also still prohibited and thus a criminal offence.
The judgment is very vague as to how much cannabis a person may possess. However, it is advisable in this regard not to cultivate or possess large quantities of it since the Court stated that:
“In determining whether or not a person is in possession of cannabis for a purpose other than for personal consumption, an important factor to be taken into account will be the amount of cannabis found in his or her possession. The greater the amount of cannabis of which a person is in possession of, the greater the possibility that it is possessed for a purpose other than for personal consumption.”
It is clear from the above that there is still a lot of legal uncertainty regarding the legality of cannabis use. Vishnu Naidoo, a national police spokesperson, said that the relevant authorities are currently busy formulating a directive to its members as to what they should do when encountering someone who has cannabis in his or her possession. This will give us some certainty, but complete legal certainty will only be attained once Parliament has done its job.
Minister of Justice and Constitutional Development and Others v Prince
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