SUMMARY
Issue before the Constitutional Court (“CC”):
Whether the impugned provisions criminalizing the mere possession, use or cultivation of cannabis by an adult in private for his or her personal use, limit the right to privacy (as held by the High Court) and, if they do, whether that limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom taking into account the factors listed under 36(1) of the Constitution.
Do the impugned provisions limit the right to privacy?
The order of invalidity made by the High Court was made on the basis that the impugned provisions constituted an infringement of the right to privacy, which right is entrenched in section 14 of the Constitution.
Drawing on both local and foreign jurisprudence the CC concluded that the right to privacy entitles an adult to use or cultivate or possess cannabis in private for his or her personal consumption. Therefore, to the extent that the impugned provisions criminalize such cultivation, possession or use of cannabis, they limit the right to privacy.
Is the limitation reasonable and justifiable?
Section 36 requires certain factors to be taken into account, however, ultimately the question is whether the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. The CC noted that the criminalization of the cultivation and possession of cannabis in private by an adult for his or her personal consumption in private, is “quite invasive”.
36(1)(d) & (e): The relationship between the limitation and its purpose and the less restrictive means to achieve the purpose:
The CC referred directly to the Prince II[1] case and cited a portion thereof, “The harmful effect of cannabis which the prohibition seeks to prevent is the psychological dependence that it has the potential to produce. On the medical evidence on record, there is no indication of the amount of cannabis that must be consumed in order to produce such harm”.
The CC further referred to a report published by the World Health Organisation (WHO) on the health and social consequences of non-medical cannabis use. The Report indicated that the adverse health and social consequences of cannabis use reported by cannabis users who seek treatment for dependence appear to be less that those reported by persons dependent on alcohol or opioid. Further the WHO report suggest that alcohol use is more harmful than cannabis use.
The CC further noted that there is no cogent evidence supporting the notion that the use of cannabis causes criminal behaviour or leads its users to behave violently or aggressively.
The High Court’s conclusion that the limitation was not reasonable and justifiable was based on, amongst others, the position taken by the South African Central Drug Authority as reflected in its position statement issued in 2016 in the South Africa Medical Journal. The Central Drug Authority noted that among alcohol, tobacco and cannabis, alcohol causes the most individual and social harm.
Purchase of Cannabis:
The provisions that the High Court declared to be inconsistent with the Constitution included provisions that prohibited the purchase of cannabis. However, the CC noted that the High Court had failed to advance reasons as to why those provisions could be said to constitute a reasonable and justifiable limitation of the right to privacy.
The CC noted that if it were to confirm the order declaring invalid provisions that prohibit the purchase of cannabis, it would, in effect, be sanctioning the dealing in cannabis. The CC noted simply, that the court could not do so. Therefore, the CC did not confirm the part of the High Court order relating to the purchase of cannabis. As such dealing in cannabis remains a criminal offence except insomuch as cultivation is concerned.
The CC concluded that the State had failed to show that the limitation (by means of criminalization) is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom and as such the impugned provisions were declared to be unconstitutional.
Practical Implications:
The operation of the order was suspended for a period of 24 months from the date of the handing down of the judgment to enable Parliament to rectify the various constitutional defects. However, the order does not operate with retrospective effect.
Interim Order of reading-in:
Although the order was suspended the CC granted an interim order of reading-in. The effect of the reading-in is that whenever the impugned provisions prohibit the use or possession or cultivation of cannabis, an exception is created with the result that the use or possession or cultivation of cannabis in a private place for personal consumption is no longer a criminal offence.
This judgment does not confine the permitted use or possession or cultivation of cannabis to a home or a private dwelling. Using the term “in private” instead of “at home” or “in a private dwelling” is preferable. The exact implications of this remain unclear.
The above reading-in means that, if a police officer finds a person in possession of cannabis, he or she may only arrest that person if, having regard to all the relevant circumstances, including the quantity of cannabis found in that person’s possession, it can be said that there is a reasonable suspicion that a person has committed an offence. If the Police officer takes the view, on reasonable grounds, that the person’s possession of cannabis is not for personal consumption, he or she may arrest said person.
In cases where it will be difficult to tell whether the possession is for personal consumption or not, a police officer should not arrest the person.
The reading-in will continue until such time that Parliament cures the constitutional defect. If Parliament fails to cure the constitutional defect within 24 months the order of reading-in will continue to be part of the legislation.
HELD
Sections 4(b) and 5(b) of Drugs and Drug Trafficking Act 140 of 1992 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 held to be inconsistent with section 14 of the Constitution to the extent that they criminalise the use or possession or cultivation in a private place of cannabis by an adult for his or her own personal consumption.
Furthermore, section 5(b) read with the definition of “deal in” in section 1 of the Drugs Act to the extent that the prohibit the cultivation of cannabis by an adult in private for his or her own consumption in private was held to be inconsistent with the section 14 of the Constitution.
[1] Price v President of the Law Society of the Cape of Good Hope [2002] ZACC 1; 2002 (2) S 794; 2002 (3) BCLR 231
Written by Caleb Mckellar and supervised by Heidi Barter, 01 October 2018
