Decrypting the decriminalisation of dagga

Local attorneys Ajeesh Lalparsad and Nitesh Sathu spoke to the Estcourt News last week and provided insight and background information about this ruling.

The key elements of the ruling are:

  1. Legislation cannot prohibit private individuals from using or possessing cannabis in private. This means that Section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 and Section 22(A) (9) (a) (i) of the Medicines and Related Substances Control Act 101 of 1965 “are inconsistent with the right to privacy entrenched in Section 14 of the Constitution and, therefore, invalid to the extent that they make the use or possession of cannabis in private by an adult person for his or her own consumption a criminal offence.”
  2. Cannabis may be cultivated in a “private place” for personal consumption. In terms of the ruling, provisions of Section 5(b) of the Drugs and Drug Trafficking Act 140 of 1992 “are inconsistent with the right to privacy entrenched in Section 14 of the Constitution and, are therefore constitutionally invalid to the extent that they prohibit the cultivation of cannabis by an adult in a private place for his or her personal consumption in private.”
  3. The operation of these two orders is suspended for two years in order to enable Parliament to rectify the constitutional defects.
  4. Smoking marijuana in public is not permitted. The judgement repeatedly states that the ruling only applies to private use of marijuana, ruling out public consumption of the drug.
  5. The order is clear that only cultivation of marijuana for private use should be allowed ruling out any commercial cultivation of the drug. The official position of the Central Drug Authority is that dagga should be decriminalised. The reasoning is that criminalisation has been shown to have little effect on the prevalence of drug use, and that decriminalisation could improve public health.

In 2016, The South African regulatory body for drugs, the Medicines Control Council, published regulations providing for the use of dagga for medical reasons.

After systematic review of scientific studies on cannabis, the Medicine Research Council concluded that there was evidence that cannabinoids could be used to treat chronic pain and spasticity in multiple sclerosis.

On March 31, 2017, in a case before the Western Cape High Court, presiding Judge Dennis Davis ruled that any law disallowing the use and cultivation of cannabis by an adult in a private dwelling was unconstitutional and therefore invalid, on the grounds that such infringement of the constitutional right to privacy was not justified.

This decision needed to be confirmed by the Constitutional Court before taking effect. In the interim, the court held that prosecutions arising from transgressions of the laws in question should be stayed.

The judge further ordered that “it will be deemed to be a defence that the use, possession, purchase or cultivation of cannabis in a private dwelling is for the personal consumption of an adult accused.”

On September 18, 2018, the full bench at the Constitutional Court ruled that adults had the right to privacy as enshrined in the Constitution as such were entitled to grow and consume cannabis in the privacy of their homes or any area that could be described as private.

No limits were placed on quantities that adults would be allowed to carry, consume or grow and said that Parliament would have to decide, once a Bill was drawn up, to accommodate these recommended changes.

The government has been given 24 months to implement the landmark ruling findings. As the legislation will be populated within the next 24 months, accused persons with pending cases, may approach the Director of Public Prosecutions with representations to have the cases withdrawn, provided that their matters fall within the ambit of this ruling.

It is unlikely that new matters involving transgressions that fall within the ambit of this ruling, will be prosecuted.

This article first appeared on Estcourt News.

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