In possession of dagga at a road block… will you be arrested?

Rastafarians outside the Constitutional Court in Braamfontein after it ruled that the private use and cultivation of Cannabis is legal. 18 September 2018. Picture: Neil McCartney

A criminal lawyer breaks down the highs and lows of what would happen at a road block if you were found with cannabis in your possession.

Following the Constitutional Court’s ruling that private use and cultivation of cannabis be decriminalised, criminal law attorney William Booth weighed in on what would happen at a road block.

Speaking on Cape Talk radio, host Kieno Kammies spoke to Booth to elaborate more on what would happen if you were found with dagga in your possession.

Asked if someone was breaking the law going to a friend’s house with a supply of dagga, Booth said: “The Western Cape High court decided that the possession or cultivation of a small quantity of cannabis for personal use at one’s home would not be illegal.”

“What has happened is that the Constitutional Court has gone further than that and said that possession and cultivation in private of cannabis by an adult for own personal consumption would be legal.”

The emphasis is on the “adult user in private”, according to Booth.

“If you’re driving along, going from a friend’s home where maybe he’s cultivated, and you’re on your way to your own home and you’re stopped at a road block, that would technically be legal.”

He explain that it depended on the quantity in possession.

“What the Constitutional Court has done, it’s determined that in a period of 24 months the matter must go to the legislature for them to change the law,  and they left it up to parliament to decide as to the quantity.”

In the judgement from “the Constitutional Court they have emphasised it has to be a small amount, and unfortunately for the time being, it will be a defense to say its for your own personal use.”

Booth said it was left to the police officer to determine what amount would be for personal use.  “If you’re stopped in a massive truck with 10-tons of cannibis, that would be illegal.”

He added there would be certain instances where it would be difficult to determine if it was for personal use or not for personal use. “In that case it was the police officer who would determine whether that person would use it for their own personal consumption.”

In the event the police were unreasonable, the court would still apply a reasonable person’s perspective on the matter – whether it was for personal use or not.

Booth said: “If a police officer incorrectly exercises his discretion and arrests somebody, the matter goes to court. The court will then ultimately decide – in the interim until parliament changes the law- that that is a defense so the court will have to determine the issue as to what is reasonable and what is not reasonable with regard to the amount.”

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