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Article by 
Durban Lawyer - Fawzia Kahn

The Constitutional Court’s ruling on 18 September 2018 to legalise the use, possession or cultivation of marijuana for private consumption has been hailed by many for bringing South Africa in line with many other countries who have decriminalised the personal use of marijuana. However, the judgement has also received much criticism from many other sectors in civil society, including NGO’s who focus on drug rehabilitation, SAMA (the South African Medical Association), Doctors for Life International, and the South African Society of Psychiatrists (SASOP). 

One of the major criticism stems from the fact that cannabis or dagga as it’s more commonly referred to in South Africa, is often used as a “gateway” drug, i.e. a drug-user starts with dagga but after a while needs to use other drugs in order to obtain a higher fix, often with disastrous, and in some cases fatal, consequences. 

In terms of the recent judgment an adult is now allowed to use and cultivate dagga for his or her private consumption. The Constitutional Court, which is the highest court in the land, found that to prohibit the use of dagga for personal consumption violated a person’s constitutional right of privacy, as found in section 14 of our constitution and therefore it was invalid. The Constitutional Court also found that the State failed to prove that it was justifiable and reasonable to limit a person’s right of privacy by prohibiting use of dagga, as set out in section 36 of our constitution.  The Constitutional Court did not determine what quantity would be considered reasonable for personal consumption and left that for Parliament to decide. The Constitutional Court gave Parliament 24 months from the date of its ruling to cure the constitutional defect. 

This case was first heard in the Western Cape High Court, when a practising Rastafarian, Gareth Prince and certain other persons sought an order from the High Court challenging sections in the Drugs Act. They argued that the sections 4 (a) and 5 (a) of this Act were unconstitutional as it offended against a person’s right of privacy. The case was opposed by various Ministries including the Ministers of Justice and Constitutional Development, Police, Trade and Industry, Health and the National Director of Public Prosecutions. The High Court found that the laws did violate a person’s constitutional right of privacy and made a ruling in favour of Prince and others. The State, comprising the various ministries mentioned above, then took the matter to the Constitutional Court, where they effectively lost the case. 

The following points of the judgment are worth noting: - The Constitutional Court was very clear that the using dagga in public remains a criminal action. Dagga use can only for private consumption. The ruling does not apply to children. Also, an adult is not allowed to use dagga in the presence of a child or even a non- consenting adult. The buying of dagga including the seeds of dagga remains illegal. The court felt this would amount to dealing. This means that even if a person wants to plant and cultivate dagga for personal use, he or she will still not be allowed to buy the dagga seeds to grow the dagga in their own garden. The law around the decriminalisation of use of dagga will not be applied retrospectively. It will only apply from date of the judgment and not before that date.

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