On 18 September 2018 the Constitutional Court ordered that the use, cultivation and possession of cannabis by an adult in a private space, for personal consumption in private, is no longer a criminal offence. However, whilst the judgment can be seen a step in the right direction for those who advocate for the decriminalisation of cannabis, the judgment is vague and leaves many questions unanswered.
THE CONSTITUTIONAL COURT’S ORDER
On 18 September 2018 the Constitutional Court ordered that: to the extent that the provisions of Sections 4(b) and 5(b) of The Drugs and Drug Trafficking Act 140 of 1992 (“the Drugs Act”) read with Part III of Schedule 2 of that Act and Section 22A(9)(a)(1) of the Medicines and Related Substances Control Act 101 of 1965 (“the Medicines Act”) criminalise the use or possession in private or cultivation in a private place of cannabis by an adult for his or her own personal consumption, same are contrary to Section 14 of the Constitution (the Right to Privacy) and therefore Constitutionally invalid.
The judgment is obviously more nuanced than this, but for the purposes of this article we will attempt not to get into too much of the legal “nitty-gritty”.
THE EFFECT OF THE CONSTITUTIONAL COURT’S ORDER
Because of the varied implications of the judgment, the Constitutional Court has suspended its order of invalidity for a period of 24 (twenty four) months to give Parliament the opportunity to correct the constitutional defects in the Drugs Act and the Medicines Act. However, Justice Zondo did grant interim relief by way of a “reading-in” of the Acts to ensure that, during the period of suspension of invalidity, it will not be a criminal offence for an adult person to possess, use or cultivate cannabis, for personal consumption, in a private space.
However, in the interim, and until such time as Parliament has made a decision as to how many grams of cannabis an adult may use, possess or cultivate for it to be considered ‘personal consumption’, the police may still arrest such persons if, after considering all the circumstances, including the quantity of cannabis found in that person’s possession, the relevant official, on reasonable grounds, suspects that the person concerned is in possession for the purposes of dealing as opposed to personal consumption. Moreover, the courts will ultimately decide whether the person was in possession of cannabis with the intent to deal or for purposes of personal consumption. If it is ultimately found by a court that the person’s intention was to deal, then the person will be found guilty of a criminal offence.
WHAT THE CONSTITUTIONAL COURT JUDGEMENT ACTUALLY MEANS
Contrary to what many people believe, this judgment does not mean that cannabis, or, as it is more colloquially referred to, as “weed”, or “marijuana”, is freely available to every South African to use, buy or sell as and how they want, wherever and however they may desire. The judgment merely decriminalises the use, possession and cultivation of cannabis by an adult, in private, for their personal consumption.
The first question that many people are asking now is what does “in private” mean? Of importance in this regard is that Justice Zondo stated in his ruling that “the right to privacy is not confined to a home or private dwelling. It will not be a criminal offence for an adult person to use or be in possession of cannabis in a private space.” From this it would appear that “a private space” is not only a person’s own home.
However, in terms of what constitutes a private space much clarity is needed. For example an office is considered a private space. Will the same laws that apply to the use of tobacco apply to the use of cannabis? The same questions arise in respect of, amongst other things, privately owned shopping centers, clubs, bars and festivals. Furthermore, will persons that are homeless or live on government owned property be precluded from exercising their right to use, cultivate or possess cannabis for personal consumption in a private space? Thus, the question appears to turn on, what constitutes a public space where the use, cultivation and possession of cannabis is still illegal? We, as attorneys, are ourselves unsure as to this answer.
“Personal Consumption” (i.e No Dealing)
The next question that the judgment raises is what constitutes “personal consumption” of cannabis? This has to be determined, as, as stated already, dealing or trading in cannabis remains illegal. In this regard, the Court has left it to Parliament to decide how many grams of cannabis a person may use, possess or cultivate in order for it to be considered ‘personal use’ and not dealing. In the interim, and as mentioned above, it remains in the discretion of a police officer and thereafter a Court to determine a reasonable amount.
Further, as dealing in cannabis is illegal, we can only assume that this extends to dealing or sale of cannabis seeds, the implication being that only those who are already in possession of cannabis may possess, cultivate and/or use it. Thus, for an adult person to use, possess or cultivate cannabis in a private space they would first have to commit a crime in order to get the cannabis as they would ultimately have to participate in the dealing of same.
It is important to note that the decriminalisation of cannabis only applies to an adult [a person 18 (eighteen) years or older] and thus it will still be a criminal offence for anyone under the age of 18 (eighteen) to use, possess or cultivate cannabis, and by implication, also to be under the influence of same.
Driving under the Influence
Furthermore, whilst the judgment states, that, “overall, even though the effect is small compared to the effect of alcohol, traffic-injury may be the most important adverse public health outcome for cannabis in terms of mortality….” no mention is made as to how driving under the influence of cannabis will be regulated or if it will even be regulated at all.
Usage by School Pupil’s
Whilst the Constitutional Court judgment makes it clear that only adults may possess, use and cultivate cannabis in a private space, for personal consumption, the question as to what rights schools have in instances where pupils who are 18 years and older test positive for, or come to school under the influence of, cannabis, remains unanswered.
Generally, in terms of a school’s policies, a pupil can be disciplined for attending school under the influence of alcohol or Illegal Drugs, (as defined by the Drugs Act), but with cannabis now being removed from the definition of “Illegal Drugs”, many schools wont have this instance covered anymore. Logically it should remain that a learner who comes to school under the influence of any intoxicating substance can be disciplined for that action, but, as pupils who are 18 years old may now consume cannabis in private, with the effects possibly remaining in their systems for in excess of a week, it will be nearly impossible to determine if a pupil is “under the influence. Thus, as an adult pupil would not be disciplined for consuming alcohol on a Saturday night would the same now apply to the use of cannabis, even though cannabis will still be detected in that pupils system on the Monday morning?
As regards possession at school, naturally, one would assume that if a pupil is in possession or using cannabis at school/school activities this would be cause for disciplinary action by the school, however the question of whether a school is a public or private space remains…? If it is a public space then the use and possession of cannabis on the school grounds would be illegal but if it is deemed to be a private space, it could technically be legal, however the judgement does make it clear that “the use, including smoking, of cannabis in public or in the presence of children or in the presence of non-consenting adult persons is not permitted”.
Using at Work
The judgment does not expressly speak to the use, possession or cultivation of cannabis in an employment environment, which technically could be considered a “private space”. Thus, it is suggested that until more clarity is given on this point, employers should revise their internal policies which regulate drugs and alcohol at work so as to ensure that same accord with the Constitutional Court’s judgment, with special measures being taken so as to not infringe on the employee’s right to privacy.
There are still questions left unanswered with regards to the use and possession of products that are derived from cannabis but are not pure cannabis or do not have the mind-altering effects attached to them, such as cannabis oils, cannabis beauty and skincare products and textiles. Much clarity is needed on the position of same.
Advertising and Social Media:
Whilst it is clear that cannabis cannot be sold or purchased, it is unclear what the position is in respect of advertising cannabis and posting about it on social media. Can an adult post pictures of themselves using, cultivating or possessing cannabis on social media? Would it make a difference whether the pictures were taken in a public or private space? Or whether their social media profiles were private or public?
Moreover, whilst an adult cannot advertise cannabis for sale, can an adult advertise cannabis that they perhaps wish to give away for free?
WHAT ABOUT IN THE INTERIM?
Unfortunately for some, the judgment does not act retrospectively in that it will only be effective going forward. Thus, convictions already in place against persons who were found using, possessing or cultivating cannabis, even in a private space for personal use, will remain in place. Justice Zondo reasoned that making the judgment retrospective “could have a disruptive effect on, and, cause uncertainty in, our criminal justice system.”
However, Justice Zondo stated that all pending criminal cases against people who were found in possession of cannabis in private spaces should be stayed.
Whilst the judgment makes clear that an adult person may possess, use and cultivate cannabis in a private space for personal consumption there are many questions that remain unanswered.
We anticipate that many more cases will have to be brought before the Courts in order for these points of uncertainty to be clarified. However, in the interim we advise that until more clarity is given in respect of the issues highlighted above, when in doubt just put it out.
Megan Harrington-Johnson (Managing Partner)
Tarin Page (Candidate Attorney)