Legal use and cultivation of cannabis in a private capacity
The use and cultivation of cannabis is now legal for private use, Constitutional Court Rules
The Constitutional Court (“the Court”), in a landmark ruling on, 18 September 2018, upheld the Western Cape High Court judgment (“High Court”) and decriminalized both the use and cultivation of cannabis in a private capacity. In addition to this, the Court ordered that parliament has 24 months within which to amend sections of both the Drugs and Drug trafficking Act 140 of 1992 (“Drug Act”) and the Medicines and Related Substances Control Act 101 of 1965 (“Medicines Act”) after these sections were found to be constitutionally invalid.
The matter first appeared before the High Court where The Dagga Party of South Africa leader Jeremy Acton, Rastafarian Garreth Prince and 18 plaintiffs brought an application to have Section 4b and 5c read with certain sections of Part III of Schedule 2 of the Drug Act and Section 22A(9)(a)(i) of the Medicines Act to be declared unconstitutional. The applicants argued that these sections 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, possession or cultivation of cannabis in private by an adult person for his or her own consumption in private, a criminal offence. They further submitted that these laws prohibiting dagga use are unfair, discriminatory and outdated.
The High Court found that adults using and growing cannabis in the privacy of their own home should not be interfered with and that the ban on smoking marijuana at home violated a person’s constitutional right to privacy thereby ruling in favor of the applicants and declaring the relevant sections of the Drug Act and Medicines Act as unconstitutional.
The state then appealed to Constitutional Court for an order declaring that the High Court judgment was not in line with the values of South Africans.
Justice Zondo, in his judgment, reiterated that these statutory provisions are constitutionally invalid, to the extent indicated, because they infringed the right to privacy entrenched in Section 14 of the Constitution.
He went on further and stated that while Parliament will take up to 24 months officially to write this bill into law, in the interim, individuals are allowed to smoke privately in their own home. However, the selling and use by minors is still illegal.
It must also be noted that the decriminalization of marijuana as determined by the Court today should not be misconstrued, and that selling it to others or smoking it outside the confines of your own home still remains an illegal practice. The Court did not specify on the quantity that can be used by an adult in his personal capacity but Justice Zondo indicated that the determination of such must be made by Parliament. This is still an issue that needs to be ironed out.
The Courts ruling today can be seen as a victory for most, in particular, those that use marijuana for medicinal purposes where to them, it is regarded as being more of a necessity rather than for recreational purposes. It will alleviate the burden of having to constantly obtain marijuana from unsavory characters in dark alleys and eliminate the fear of being arrested and thereby being recorded as a criminal. It does however, need to be controlled by those that use it, as well as the police tasked with authority of ensuring that the Drug Act and the Medicines Act, as amended, are strictly adhered to at all times.
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Even though the use and cultivation of cannabis is now legal for private use, it is still a drug, should you or a family member need assistance with addiction the following options are available.
SADAG Social Development Substance Abuse Line
Call: 0800 12 13 14
Hours: 24hour Helpline
Call: 083 900 69 62 (083 900 MY NA)
Hours: 24hour Helpline
Call: 011 728 6668
Elim Clinic (Drug Abuse Treatment Centre)
Call: 011 975 2951
Minister of Justice and Constitutional Development and Others v Prince; National Director of Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others v Acton and Others  ZACC 30
Drug trafficking Act 140 of 1992
Medicines and Related Substances Control Act 101 of 1965