On 31 March 2017, the Western Cape Division of the South African High Court delivered a judgment, which was soon reported, on mainstream media mediums as well as social media vehicles, as having legalised the use of the marijuana (otherwise known as cannabis) in South Africa.
The aforesaid High Court ruling declared provisions of statutory law inconsistent with the Constitution of the Republic of South Africa
We explore the judgment of the High Court in this article by identifying four key facts:
1. What was declared inconsistent with the Constitution?
Sections 4(b) and 5(b) of the Drugs and Drug Trafficking Act 140 of 1992 (the Drugs Act Section 22A(10) thereof) read with Part III of Schedule 2 of the Drugs Act and Section 22A(9)(a)(i) of the Medicines and Related Substances Control Act 101 of 1965 (the Medicines Act) read with schedule 7 of Government Notice R509 of 2003 published in terms of Section 22A(2) of the Medicines Act were declared inconsistent with the provisions of the South African Constitution.
Importantly, the above statutory provisions were declared to be inconsistent with the provisions of the South African Constitution only to the extent that they prohibit the use of cannabis by an adult in a private dwellings where the possession, purchase or cultivation of cannabis is for personal consumption by an adult.
2. Can you explain what these statutory provisions in the Drugs Act and Medicines Act mean?
(i) Section 22A(9)(a)i) of the Medicines Act prohibits the acquisition, use, possession, manufacture or supply of cannabis, while subsection (10) provides an overriding prohibition on the sale or administration of cannabis other than for medicinal business;
(ii) Sections 4 and 5 of the Drugs Act, may be summarised as limiting the possession or dealing in any dangerous dependence-producing substance or any undesirable dependence-producing substance to only medicial personnel and statutory officials. All other person not mentioned in these subsections are prohibited from using cannabis/marijuana, having it in their possession or dealing in cannabis/marijuana.
3. Why would a Court find that portions of the Drugs Act and Medicines Act are inconsistent with the South African Constitution?
South Africa is blessed with one of the most modern Constitutions in the world, which given the history of the country, provides strong protection to basic human rights as enshrined in Bill of Rights within the Constitution.
Where a right provided for within the Constitution’s Bill of Rights is infringed upon, such infringement must be reasonable and justifiable while serving a legitimate purpose.
For the Court to rule as it did, it may be inferred that, based on the facts and reports before the Court, the prohibition against the use, possession, cultivation and purchasing of cannabis/marijuana as relates to personal use in a private dwelling was an unreasonable and unjustifiable infringement of an individual’s right to privacy which served no legitimate purpose.
The essence of such ruling being that for when a statutory provision seeks to regulate what individuals may or may not do in their private space, especially at their respective homes, such regulation must be measured against a high standard and must be shown to have a legitimate purpose.
4. Can an individual be arrested for use or possession of cannabis/marijuana even if he/she has a small quantity that is for personal use at his/her home?
Yes. Individuals may still be arrested for possession of cannabis/marijuana even if they have only a small quantity in their possession and intend to only use the drug at their home.
What this order changes, is that until Parliament makes amendments to the Drugs Act and Medicines Act, or if Parliament fails indefinitely to do so, any individual who is arrested and charged with use of cannabis/marijuana, possession or dealing of the same drug, may use the legal defence that their use, possession, cultivation or purchase of the drug is for personal use in a private dwelling.
This doesn’t mean that you cannot be found guilty of use, possession, cultivation or the purchase of cannabis/marijuana. Rather it means that you will be able to be found not guilty if you can show prove a case that your use, possession, cultivation and purchase of marijuana/cannabis was for personal use in a private dwelling.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.