South Africa: ConCourt Rules That Personal Use of Dagga Is Not a Criminal Offence

Top: Constitutional Court. Bottom-left: Marijuana leaves. Bottom-right: Marijuana farming community in Pondoland in the Eastern Cape.
18 September 2018

The Constitutional Court has ruled that the personal use of dagga is not a criminal offence.

"The right to privacy is not confined to a home or private dwelling. It will not be a criminal offence for an adult person to use or be in possession of cannabis in private space," Deputy Chief Justice Raymond Zondo said on Tuesday.

"The judgment does not specify how many grams of cannabis can a person use or have in private."

The ruling follows a Western Cape High Court judgment that the possession, cultivation and use of dagga for private use was allowed.

The State appealed that judgment in the Constitutional Court, arguing that the decision was not in line with the values of South Africans.

Key laws debated in the Western Cape High Court in 2017 were the Drugs Act sections 4 (b) and 5 (b) as well as section 22A of the Medicines Act.

The court ultimately found: "This Court must invoke its powers under s 172 (1) (b) of the Constitution to order a suspension of the declaration of invalidity for a realistic period to ensure Parliament may correct the defect. In my view, a period of 24 months from the date of this judgment would be appropriate.

"The order also makes clear that the relevant provisions are only unconstitutional to the extent that they trench upon the private use and consumption of a quantity of cannabis for personal purposes, which the legislative considers does not constitute undue harm."

The Western Cape High Court also ordered that, in the interim period, prosecutions for personal dagga possession as described in its judgment should be stayed.

Zondo ruled on Tuesday that Sections 4(b) and 5(b) of the Drugs Act, and Section 22A(9)(a)(i) of the Medicines Act were unconstitutional and invalid, to the extent that it prohibits the use of possession of cannabis by an adult in private for the adult's personal consumption in private.

Zondo said the Constitutional Court held these statutory provisions to be constitutionally invalid, to the extent indicated, because they infringed the right to privacy entrenched in Section 14 of the Constitution.

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 private dwelling. It held that the right to privacy extends beyond the boundaries of a home.

It suspended its order of invalidity for a period of 24 months to give Parliament an opportunity to correct the constitutional defects in the two acts.

It would therefore not be a criminal offence to use or be in possession of cannabis for personal consumption, in a private space.

This also extended to cultivating cannabis in a private place for personal consumption in private.

Zondo took the view that it should be the left to Parliament to decide on the quantity of cannabis that an adult person may use, possess or cultivate in order for it to amount to "personal use".

He said that a police officer would have to consider all the circumstances, including the quantity of cannabis found in an adult person's possession.

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.

The courts will ultimately decide whether the person was in possession of cannabis with the intent to deal or for own consumption.

Source: News24

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