Last year, we discussed the judgement handed down in the Western Cape High Court in which Davis J declared that the laws that prohibit the use, possession and cultivation of cannabis by adults in the home is an unjustifiable infringement on the right to privacy and therefore invalid. Although this judgment was a massive development in the process of decriminalising cannabis use, it did not mark the end of the fight. On appeal to the Constitutional Court, the judgment was confirmed on the 18th of September 2018.
The Constitutional Court’s View
The Constitutional Court agreed with the High Court that certain sections of the Drugs and Drug Trafficking Act 40 of 1992 infringed individual’s constitutional rights, specifically section 14 of the Constitution, which protects an individual’s right to privacy. The right to privacy entails that a person should have control over their personal affairs relatively free from unwanted intrusions. The government prohibiting an individual using, possessing or cultivating cannabis in private is an infringement of section 14. While no right is absolute, and multiple rights often conflict, the Constitutional Court acknowledged that a high level of protection should be given to a person’s right to privacy in their intimate personal sphere of life. However, once a person enters into a relationship with persons outside this close intimate sphere; the individual’s activities acquire a social dimension and the right to privacy becomes subject to increased limitations. The reason for this shift is that one’s actions could have a negative impact on others’ rights. Therefore, the government has an obligation to regulate this relationship to ensure that a balance is met to protect both parties.
As there was a clear infringement of section 14, the State had a burden to prove that the limitation of the right to privacy is reasonable and justifiable in an open and democratic society in accordance with section 36 of the Constitution. The State justified this infringement on the basis that the prohibition of individuals using cannabis even in their most intimate sphere of life was to protect them from the adverse effects associated with drugs. The Court looked at multiple studies that held that the detrimental effects of cannabis were not as severe as once thought and this was reflected by the change in attitude towards the use of cannabis. This change is evidenced by multiple jurisdictions around the world either decriminalising or legalising the personal use of cannabis. On this basis, the court held that the State’s limitation was not reasonable or justifiable to limit the section 14 right and therefore, such limitation was unconstitutional.
What is the impact of the Constitutional Court’s judgement?
The Court declared the sections of the Drugs and Drug Trafficking Act that prohibited the use, possession and cultivation of cannabis in private invalid. The Constitutional Court went further than the High Court judgment – the High Court stated that it was unconstitutional to prohibit the use, possession and cultivation of cannabis in one’s private dwelling but the Constitution Court held that the use, possession and cultivation of cannabis should not be limited to private dwellings but should be permitted “in private”. This has a wider ambit. The Court however did not provide guidelines as to what constitutes “in private”, and thus this will have to be determined by Parliament. The invalidity of the provisions of the Act was suspended for a period of 24 months to provide Parliament with sufficient time to remedy the defects in the offending legislature.
The Constitutional Court realised although it instructed the legislature to change the unconstitutional legislation, interim relief was needed, so that the infringement of section 14 would not persist while waiting for Parliament to remedy it. The Court “read in” words in the offending provisions, to the effect that as of 18 September 2018, it is legal for an adult to use, be in possession of or cultivate cannabis in private. It is important to note that it is illegal for a minor to use, possess or cultivate cannabis. Furthermore, an individual cannot use cannabis in the presence of a minor or a non-consenting adult. The use, possession and cultivation of cannabis has to be for personal consumption, therefore one cannot cultivate cannabis for the purpose of selling it to third parties, or actually sell it. Where a person is charged with possession of cannabis, the State will have to prove beyond a reasonable doubt that the purpose of possession was not for personal consumption. How does the State prove that the purpose is not for personal consumption? Several factors are taken into account to determine the purpose of possession, including (but not limited to) the quantity of cannabis in possession.
The Court held that the judgement will not apply retrospectively, therefore anyone who has been convicted of use, possession or cultivation of cannabis – even if it was for personal use – must carry out their sentence.
What are the next steps?
Parliament is now tasked with providing regulations of the private use, possession and cultivation of cannabis. This will most likely include what qualifies as “in private” and what quantity of cannabis will be considered for personal use. Parliament however cannot enact legislation that infringes or diminishes the right to privacy of individuals as set out by the Constitutional Court. Further, although cannabis has been, to a certain extent, decriminalised, there is still wide gaps in the law regarding the regulation of cannabis – its growth and consumption outside of the private sphere, and it sale, distribution and limitations.
Can I go to work high?
The most likely answer to this will be NO. Workplaces have certain policies that employees need to observe. One of these includes the prohibition of carrying out work under the influence of alcohol or narcotics. Employers have an obligation to create a safe environment at work and by allowing intoxicated employees to carry out any sort of work under the influence of an intoxicating substance can cause harm to others, especially when machinery is involved. Although the consumption of cannabis may not be illegal any longer, employers may still prohibit it in a workplace environment. A potential issue will be proving that an employee is high at work. With alcohol, a simple breathalyser test can be used to determine the levels of alcohol present in the blood stream, however, THC can be present in the blood long after the effect of cannabis have worn off. Therefore, determining whether an employee is high or not will be a lot more difficult.
This has been a long process for the parties who have fought for the right to use cannabis, but this right is finally a reality. There’s still plenty of work to be done in South Africa to bring it up to speed with global trends in decriminalisation, legalisation and regulation, but one thing’s for sure – the cogs are in motion.
Authored by Shona Nicoll.