As per the judgment handed down by Judge Raymond Zondo in September 2018, the legislation criminalising the private possession, use and cultivation of cannabis has now been declared unconstitutional and the aforementioned practices are now considered to be legal in South Africa.
However, this does not come without limitations and there are still a few grey areas to this recent ruling.
The legislation that prohibited the private possession, use and cultivation of cannabis was the Drugs and Drug Trafficking Act, No.140 of 1992 as well as the Medicines and Related Substances Control Amendment Act 19 of 1976.
Section 14 of the Constitution of the Republic of South Africa deals with a person’s right to privacy and the above legislation was found to be inconsistent with this right.
The conflict with the Constitution only relates to the fact that the legislation prohibited the use, cultivation and possession of cannabis by an adult person in a private dwelling for his or her consumption and this is where the limitation comes into play.
It is important for the public to be aware that this ruling only applies to adult persons who use cannabis for “personal use” in their private dwelling.
The term “private dwelling” is open for interpretation – for example, could it be argued that your vehicle, or your caravan is considered to be your private dwelling, even though it may be parked in a public area?
An article that was published online by a newspaper publication dealt briefly with this grey area as to what is considered to be private in terms of the use of cannabis.
The ruling by the Constitutional Court clearly envisaged that cannabis may be consumed as long as it is used in private and not in public.
This is very broad and it remains to be seen how the courts will interpret the distinction between public and private use in practice.
The amount of cannabis that constitutes a fair amount for personal use has yet to be defined by Parliament and accordingly, this places the onus on the South African Police to decide on a case-by-case basis, on reasonable grounds, what is deemed a fair amount of cannabis for personal use, possession and cultivation.
Interestingly a recent news report explained that the South African Police had instructed liquor stores to remove a cannabis infused beer named “Durban Poison Cannabis Lager” from their shelves and to refrain from selling it, even though it did not contain the substance known as tetrahydrocannabinol (THC), which is the element ultimately responsible for the psychological effects associated with the use of cannabis.
This matter is still under investigation by the police and challenged by the owner of the product. It is these types of instances that will lead to the development of the law and will clarify what will finally become legally accepted as constituting private use.
Should you have any queries regarding this Judgment or need any advice concerning this recent issue, feel free to contact the offices of Malherbe Rigg & Ranwell on 011 918 4116.
Article by Lauren-Tayla Thomaz, candidate attorney at Malherbe Rigg & Ranwell Inc.
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