ConCourt ruling sets a cat among pigeons

All puns about the blunt ruling blazing the way to a new high over the possession and use of cannabis legislation aside, there are issues with this far-reaching judgment.

In a unanimous judgment by the Constitutional Court’s Deputy Chief Justice Raymond Zondo, he was careful to refer to the use and cultivation of dagga “in private”.

However, Zondo never defined what this meant, said Wits University associate professor, advocate James Grant.

“I can’t think there is one readily available in law that could apply,” said Grant. “If you’re out of your home, is a public toilet a private place? I don’t know.

“What is private, what if you have visitors, it’s not private.”

It was now up to parliament to tighten up the legislation and provide definitions for an area in law which has now become very grey, said Grant.

“Somebody could be in possession of two joints, one joint even, and the officer could say he had reason to believe because you were standing on the street you wanted to sell some of it.

“Let’s say that is true, someone is behaving in way which raises reasonable suspicion in a police officer whatever the person is holding, he wants to sell some of it, that would give him reasonable grounds,” Grant said.

The other issue is that Zondo reversed the Western Cape High Court ruling which declared the purchase of cannabis constitutionally invalid. Zondo noted if the Constitutional Court was to confirm the order declaring invalid provisions which prohibited the purchase of cannabis, it would, in effect, be sanctioning dealing in cannabis.

“This the court cannot do,” Zondo said. “Dealing in cannabis is a serious problem in this country and the prohibition of dealing in cannabis is a justifiable limitation of the right to privacy.

“I will, therefore, not confirm that part of the order of the high court because we have no intention of decriminalising dealing in cannabis.”

Neil Webster of the Cannabis Development Council of SA said: “The solution we are advocating at the moment is we have to be forming guilds where you can get together and share amongst yourselves. Obviously, parliament is going to have to write the rules and that will then hopefully, through negotiation and consultation with ourselves and other interested parties, we can create the right framework.”

The most important thing was to get the police to back away from harassing people using cannabis, he said.

– amandaw@citizen.co.za

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