On Tuesday, 18 September the Constitutional Court of South Africa, handed down a landmark judgment confirming the order of constitutional invalidity made by the Western Cape High Court, which had previously declared that criminalising the use, possession, purchase and cultivation of cannabis is unconstitutional.
The unanimous judgment was read by Deputy Chief Justice Ray Zondo, who declared that certain sections of the Drugs and Trafficking Act 140 of 1992 (Drug Act) and Medicines and Related Substances Control Act 101 of 1965 (Medicine Act) are inconsistent with Section 14 of the Constitution because they directly infringe on the right to privacy.
According to Zondo, the order serves to limit the legislation so far as “to the extent that they criminalise the use or possession in private or cultivation in a private place of cannabis by an adult for his or her own personal consumption in private”.
There was a jubilant mood in the public gallery as judgment was handed down. A man shouted: “Prince, you have defeated Goliath,” referring to the first respondent Gareth Prince who has been fighting with the Minister of Justice for decriminalisation since 2017.
The court saga started when Prince and others took their case to the Western Cape High Court to argued that the criminalisation of marijuana use and its possession was a violation of the right to equality, dignity and freedom of religion.
And because of this, certain sections of the Drugs Act and Medicines Act were declared constitutionally invalid.
According to Section 4(b) of the Drugs Act, the use or possession of any dangerous dependence-producing substance such as cannabis or any undesirable dependence-producing substance is prohibited unless listed within the provision.
Furthermore, Section 22A(9)(a)(i) of the Medicines Act prohibits the acquisition, use, possession, manufacture or supply of cannabis, and section 22A(10) of the same act prohibits it’s sale for other than for medicinal purposes.
The High Court had declared this to be inconsistent with the right to privacy enshrined in Section 14 of the Constitution, “only to the extent that they prohibit the use, possession, purchase or cultivation of cannabis by an adult person in a private dwelling for his or her consumption”.
However for Prince and others, they maintained that High Court judgment still infringed other rights in the Constitution such as the right to equality as it only covered the the use of cannabis at a private dwelling.
The High Court’s order of constitutional invalidity was then referred to the Constitutional Court for confirmation as required by the Constitution that the ConCourt is the highest court of appeal.
And although the state appealed against the order of the High Court and opposed its confirmation, Prince and others further applied for leave to cross-appeal the High Court’s failure to include the infringement of the other rights and also the decision to confine its order to the use or possession or purchase or cultivation of cannabis to a home or private dwelling only.
And in this unanimous judgment the Constitutional Court decriminalised the use, possession or cultivation of cannabis. However, it stated that it was only for adults in an area of their privacy.
Furthermore, the ConCourt judgment extended the definition of a private dwelling to include areas outside of the home but not in public.
“The Constitutional Court dispensed with the High Court’s limitation of its order to the use, cultivation or possession of cannabis “at home or in a private dwelling,” read Justice Zondo.
In short the order:
(a) decriminalises the use or possession of cannabis by an adult in private for that adult person’s personal consumption in private; and
(b) it decriminalises the cultivation of cannabis by an adult in a private place for that adult’s personal consumption in private.
“This is a major victory for freedom. Government cannot prescribe the moral virtue or mode of excellence to its people. If a particular person wants to live a certain lifestyle they must be allowed,” said Prince outside the Concourt.
Justice Zondo was stern in emphasising that the order does not include the use or possession of cannabis by children, even in private, nor is the use by an adult in public decriminalised.
Therefore, the police can still arrest someone found with cannabis not for personal use, although the court cannot prescribe what constituted an acceptable amount found on a person for the purposes of consumption and not for sale.
“A police officer would have to consider all the circumstances including the quantity of cannabis found in an adult person’s possession,” said Justice Zondo.
Furthermore, the court ordered that “if the police officer, on reasonable grounds, suspects that the person concerned is in possession of that cannabis for dealing and not for personal consumption, the officer may arrest the person”. DM