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South Africa’s Highest Court Legalizes Cannabis for Private Use

By Alexander Beadle
Published: Sep 27, 2018   
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South Africa is now the third African country, following Lesotho and Zimbabwe, to legalize cannabis use. On Tuesday 18th, South Africa’s Constitutional Court voted to allow individual cultivation and use of cannabis, or “dagga” as it is locally known in South Africa, in the home for private consumption.

A constitutional controversy

The ruling follows years of campaigning by activists against the hard-line stance taken by the South African government. In 2017, activists petitioned the Western Cape High Court to declare the Criminal Prohibition of Dagga Act and relevant sections of the Drugs and Drug Trafficking Act as unconstitutional. Activists argued that controlling what could be done at home was an invasion of privacy that violated certain protections listed in South Africa’s Bill of Rights. Despite the Western Cape High Court ruling in favor of the activists, the State refused to act, instead choosing to argue that the ruling itself was, in fact, unconstitutional, as dagga had not been proven to be safe and citizens also have a right to a safe and healthy environment under the same Bill of Rights.

The recent hearing by the Constitutional Court was to put an end to this constitutional debate by providing a final ruling on the matter. In a unanimous decision, Constitutional Court judges upheld the ruling of the High Court, similarly concluding that the current prohibition of cannabis in homes can be considered a violation of Chapter 2 Section 14 of the South African Bill of Rights, which governs the privacy rights of citizens.

This latest ruling is legally binding, and the South African government will be forced to recognize it in the country’s legal framework. The Constitutional Court has granted the government a grace period of 24 months in which to change its drug laws accordingly. During this period, citizens who use cannabis in private will be protected from arrest or prosecution by the court ruling.

A lack of clarity

It is important to note that the ruling only legalizes the home cultivation of cannabis plants for personal use, and the smoking of cannabis in private spaces; the sale of cannabis, and cultivation for the purpose of sale, will still remain illegal in South Africa. Additionally, smoking cannabis in public places will also still be considered an offense.

However, the court ruling made no attempt to set guidelines for what should be considered a reasonable scale of cannabis cultivation for personal use, nor as to what should be considered a suitably “private space” for smoking the plant.

"The concept of privacy is undefined and the only thing that we were given is that the Constitutional Court disagreed with the judgment [by the High Court] that the privacy provision needed one to be in one's own dwelling in order to be in private," explained James Grant, an associate professor of Law at Wits University, in an interview with Talk Radio 702.

"Here it has been widened, but one doesn't know what it really means? If there are two of you must it be hidden in an alley for it to be private? We don't know. That judgment doesn't seem to define it."

Court officials say that the ruling left these points without resolution so that parliament can determine realistic and appropriate limits as a part of the 24-month development window they have been given. Parliament will also have the power to consider proposals for systems to regulate how citizens can buy cannabis plants for personal cultivation and use, as well as the possibility of taxing this process.

Reactions to the ruling

Jeremy Acton, the political leader of the South Africa Dagga Party, has been a long-time campaigner for the legalization of cannabis in South Africa. After his application to become an attorney was rejected by the Cape Bar due to a cannabis possession charge he faced as a young law student, Acton has used his legal education to campaign for cannabis law reform in his country. He was one of the original petitioners involved in the initial Western Cape High Court case.

Speaking to CNN International after the Constitutional Court case ruling, Acton explained that this is not the end of the road for him and his fellow campaigners.

"The ruling is a victory for every person who is a member of our culture. However, people should be able to gather in places which are still private events where collective experience of cannabis use may continue, just as people gather to have a beer," he said.

Dr. Andrew Faull, a Research Associate at the University of Cape Town’s Criminology Department, who specializes in the research of public policing and best police practices, praised the ruling on Twitter. Dr. Faull explained that the move to legalize private cannabis use “has the potential to free up lots of police resources, to reduce police corruption, and to reduce unnecessary conflict between police and the public.”

The South African government has yet to release a statement on the Constitutional Court rulings.


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