DECRIMINALISATION OF CANNABIS (DAGGA) – WHERE IT STARTED

The Constitutional Court handed down judgment in September 2018 on the use and possession of cannabis. The decriminalisation of personal use and possession by the Constitutional Court came as a shock to the people of South Africa and many of them do not know how and why this happened.

The application was initially brought by Prince, a Rastafari who used cannabis (dagga) for religious reasons. Prince’s challenge was directed at the Cape Law Society which found that Prince was not a fit and proper person to be admitted into the attorneys’ profession since he had convictions for possessing dagga and was not going to stop using it.

Prince alleged that the criminal prohibition on the use and possession of cannabis by the Drugs and Drugs Trafficking Act and the Medicines and Related Substance Control Act (the Acts) infringed his right to practice his religion.

The application to challenge certain provisions of these Acts was initially based on religious reasons; however the second High Court application was based on the general prohibition of the use and possession of dagga. The High Court had to examine the right to privacy and other rights such as the right to freedom and dignity.

The Western Cape High Court in March 2017 handed judgment declaring certain sections of the Acts invalid and inconsistent with the Constitution insofar as they limited the use, possession and cultivation of dagga in a private dwelling by an adult.

The High Court’s ruling on the invalidity of certain provisions of the Acts was then referred to the Constitutional Court for confirmation. The Constitutional Court confirmed the order of the Western Cape High Court and declared certain provisions of the Acts to be constitutionally invalid as they infringed on the right to privacy, thereby legalising the personal use and possession of cannabis (dagga).

Concerns about the legalisation of dagga include it being accessible to the youth, the quantity a person is allowed for a person, its effect on a person’s health and that it might encourage or lead to criminal behaviour.

The Constitutional Court saw it fit, having regard of the separation of powers doctrine, to leave it to Parliament to determine the quantity and impose other limitations which it may deem necessary and justifiable.

Police officers are also given discretion to determine whether the quantity of dagga found on a particular individual exceeds the reasonable quantity for personal use and whether that person had an intention to deal in dagga and sell same.

So now it’s up to the legislators to amend the relevant laws (Acts) to give the detail that we need to understand the full extent of the Constitutional Court’s ruling. In making the necessary changes to the legislation, the legislature will need to consider how to ensure that dagga is not used by the youth, how much of it is safe to use, preventing the dealing/selling of it and what punishment should be in place for transgressors.

GUEST AUTHOR BIO

Charmaine Schwenn

Attorney

Schwenn Incorporated Attorneys & Conveyancers

Over the last two decades, Charmaine has grown a loyal following of clients. As a former partner at Tate, Nolan and Knight Inc., Charmaine has worked with clients across a diverse spectrum of industries and needs.