Highest court gives green light to Dagga in South Africa

In a landmark judgment, the Constitutional Court decriminalised the use or possession of cannabis by an adult in private for personal consumption, as well as the cultivation of it by an adult for personal use. 

The judgment, penned by deputy chief justice Raymond Zondo, was unanimous in declaring sections 4(b), 5(b) of the Drugs and Drugs Trafficking Act (Drugs Act) and sections 22A(9)(a)(i) of the Medicines and Related Substances Control Act (Medicines Act), to be inconsistent with the constitution.  As Zondo read the judgment, it was greeted with continuous cheering from the public gallery.

It was declared from the date of the order that the sections were inconsistent with the right to privacy. 

The court suspended the order of invalidity for 24 months, to allow parliament to cure the constitutional deficiency. 

Zondo said the court did not specify the amount of cannabis, saying that it would have breached the doctrine of the separation of powers. 

The Constitutional Court in November 2017 heard an application for leave to appeal against the judgment and order of the Western Cape High Court, which also declared sections 4(b), 5(b) of the Drugs Act and sections 22A(9)(a)(i) of the Medicines Act, to be inconsistent with the constitution to the extent that they prohibited the use of cannabis by an adult in a private home for personal consumption. 

It heard the confirmation application to confirm the high court’s judgment at the time of the appeal.

The application for leave to appeal was brought by the National Prosecuting Authority (NPA), minister of justice and constitutional development, the minister of police, the minister of health, the minister of trade and industry, the minister of social development and the minister of international relations and co-operation (applicants). 

Garreth Prince, Ras Menelek Barend Wentzel, Jonathan David Rubin, Caro Leona Hennegin and Jeremy David Acton were the respondents in the case and had instituted the proceedings in the Western Cape High Court.  The high court had found the core of the case was the right to privacy, which was concurred by the Constitutional Court. The apex court, however, made it clear that the right to privacy was not confined to a home or private dwelling.