On the 31st March 2017, Justice Dennis Davis at the Western Cape High Court, handed a judgement that declared that parts of the 1992, Drugs and Drug Trafficking Act were invalid and unconstitutional.
So why was this judgement passed? Well, a few individuals, namely Jeremy Acton, Gareth Prince and Jonathan Ruben argued that the right to equality, dignity and freedom of religion were being violated by the criminalisation of dagga use and possession.
What was interesting though, was that Davis chose to address their challenge almost only in the context of the right to privacy.
Arguments were raised by Prince about privacy and said that a distinction between alcohol, tobacco and dagga didn’t make sense and wasn’t justified.
This was, however, not a new fight as Prince actually challenged how constitutional the Drugs and Drug Trafficking Act was almost 20 years ago. The challenge that he made was that the act violated his right to freedom of religion as he is a practicing Rastafarian. In his application, he said that there should be an exception for those that are Rastafarian and are practicing this religion.
In 2002, it was ruled by the Constitutional Court that because the effects of marijuana were unknown and that it would be difficult to enforce a religious exemption, the drugs act was not then unconstitutional.
Davis then had to decide if the case could even be heard as the Constitutional Court had already made a previous decision and a lower court would not be able to reconsider the matter and decide differently.
The term for this is res judicata, which translated means previously judicially determined. Davis was able to differentiate between the two cases and decided that the 2002 case was narrow in view as the Constitutional Court only looked at religious exemption and not if the general prohibition was unconstitutional. Davis then decided that res judicata did not apply.
So you might be wondering what happened in the new case…
The question now was if the government was able to regulate and dictate what people could consume in the privacy of their own homes or if this regulation was an unreasonable infringement of the right to privacy and dignity. The consumption and smoking of dagga as well as the cultivation of plants on private property were considered by Davis in the analysis.
The judgement, which was discussed by Davis included the racist history that was behind the prohibition of dagga through State v Nkosi, which was a 1972 case that saw dagga as a ‘great social evil’ even though ’natives’ used it. The prohibition was then justified by racist and moralistic reasons, which is insufficient in terms of the right to privacy under the Constitution. The prohibition would then need to be justified on scientific evidence and other types of evidence.
The court considered a report from Professor Mark Shaw as well as other studies and reports. They also looked at decisions from other jurisdictions like Canada, Argentina and Mexico. Davis also noted that there has been a shift of legalisation in other countries like Australia, Uruguay, Switzerland, Portugal, Spain and some states in the USA.
After all evidence was considered, the court found that the government had not proven that the law’s infringement of the right to privacy was a defensible infringement of a person’s right to privacy in the home.
It was then declared by Davis that certain sections of the Drugs Act and the Medicines and Related Substances Act, 1965 invalid where they prohibit the private and personal use of dagga.
However, the order of invalidity was suspended for 24 months, so that Parliament was able to amend the Acts and bring them in line with the Constitution, but first it must be confirmed by the Constitutional Court.
What Does This Actually Mean Though?
In a nut shell the Western Cape high court ruled that sections of the Drug Trafficking Act as well as parts of the Medical and Related Substances Act should be changed to allow for the provision for smoking dagga at home or growing plants for personal use.
Davis found that it was an infringement on the right to privacy to ban the personal use of dagga by adults in their homes. Parliament has 2 years to correct the laws where they relate to dagga use. The changes will mean that adult South Africans, right to privacy would not be infringed upon. However, as the ruling relates to constitutional rights, it will need to be first confirmed by the Constitutional Court.
So, what does this mean?
There are some that see this as more of a referral so people need to be careful. It is seen as a referral because the order states that the Constitutional Court needs to ask Parliament within 2 years to change the laws so that private use of cannabis is allowed.
The case also only looks at the personal consumption of dagga and does not look at the distribution. This means, you will still be arrested for possessing dagga, but your defence will be of privacy in court.
If the judgement is agreed upon by the Constitutional Court then it will still be a criminal offence to use dagga for personal use but if you are arrested then your defence is personal use, so it effectively will not be a criminal offence.
The judgement passed is a little hazy still as one court has suggested that it is unconstitutional, but this is not confirmed yet as the Constitutional Court needs to have their say.
Jeremy Acton has said that he believes that the ruling will be confirmed by the Constitutional Court as he is not able to see on what ground the state would appeal.
He also went on to say that he would like to appeal to the high court judgement, because it did not go far enough as he would like the possession of cannabis to be legal.
However, this judgement is only the start of a massive debate and legislation needs to be changed by Parliament in 2 years so that dagga is removed from the Medicines and Related Substances Act.
Exciting times ahead of us guys....and as always, be wise, vaporize!