In a landmark judgment handed down on 31 March 2017 in the Western Cape Division of the High Court of South Africa, the court ordered that the possession or cultivation of cannabis, by an adult in a private dwelling and for purposes of personal use, will be deemed to be a valid defence to a criminal charge under Sections 4(b) and 5(b) of the Drugs and Drug Trafficking Act 140 of 1992 as well as Section 22A(9)(a)(i) of the Medicines And Related Substances Control Act 101 of 1965.
Judges J Davis, J Saldanha and J Boqwana further ordered that the aforesaid sections of the applicable acts are declared to be inconsistent with the Constitution of the Republic of South Africa, to the extent that same relates to personal use by an adult in a private dwelling, and that such declaration of invalidity is suspended for a period of 24 months from date of judgment to allow Parliament to correct the defects as set out in the judgment.
The considerations that were core of his judgment was right to privacy in an individual’s intimate and personal sphere, the limitation of the right to privacy in that sphere in line with Chapter 2 of the Constitution as well as the proportionality of legislation prohibiting the use and personal consumption of cannabis to the right to privacy.
Although the court has effectively decriminalized the use of cannabis as set out in paragraph one above, this may however only be temporary as the court’s judgment is still subject to appeal and ultimately to confirmation by the Constitutional Court, as any judgment relating to constitutional validity of an act needs to be confirmed by the Constitutional Court.
Simply put, the practical impact of this judgment is that any adult may possess, cultivate and use cannabis as long as it is done in a private dwelling and for personal consumption of the relevant adult. Should the South African police service arrest and charge such a person for contravention of Sections 4(b) and 5(b) of the Drugs and Drug Trafficking Act 140 of 1992, it will be a valid defence to state that same was used for personal use in a private dwelling.
The task of Parliament will however not be an easy task. To amend current legislation to allow for restricted use of an otherwise illegal substance will have to be drawn up with meticulous detail and must be unambiguous and to the point. As was correctly raised by the state in their opposing argument, there is a real risk that restricted use will be exploited to “legalise” the cultivation and use of cannabis for non-personal consumption. The lawmakers will, at the veryu least, have to incorporate a restriction on the amount of cannabis that may be produced, stored and transported, where one may procure seeds to plant same (perhaps in the form of registered dealers) as well as what exactly is defined as personal use in a private dwelling.
Although this judgment is generally being welcomed, there is a real risk that the scope of the decriminalization may be exploited by individuals to avoid the rule of law and criminal prosecution. It is however still early days and this is without a doubt a subject on which there will be a follow up article.