On Tuesday the Constitutional Court decriminalised the possession and cultivation of cannabis in private by adults for personal private consumption. The Court relied on the right to privacy to reach this result. Although the order was suspended until Parliament can fix the defect in the law, the Court provided interim relief that will make it unlawful for the police to arrest adults who privately cultivate, possess or use relatively small amounts of cannabis.

Several years ago, Gareth Prince (one of my former students) approached the Constitutional Court, arguing that legislation prohibiting Rastafarians from possessing and using cannabis unjustifiably limited the right of Rastafarians to religious freedom as guaranteed by section 15 of the Bill of Rights. In that case (decided in 2002), the Constitutional Court voted 5 votes to 4 to dismiss Mr Prince’s application, but as we say in Afrikaans “aanhouer wen” (he who perseveres, triumphs), and this week the Constitutional Court in a unanimous judgment came to a different conclusion.

As Deputy Chief Justice Raymond Zondo pointed out in his judgment in Minister of Justice and Constitutional Development and Others v Prince,the situation has changed since the Constitutional Court ruled against Mr Prince in 2002. There are now 33 jurisdictions across the world in which the use and possession of cannabis have been decriminalised or legalised.

This case also differs from the original 2002 case in that it was not based on the right to freedom of religion and did not require the legislature to provide for a special exemption for Rastafarians only. Instead, the argument before the court was that the criminal prohibition of the private cultivation and possession of cannabis for private consumption unjustifiably limited the right to privacy guaranteed by section 14 of the Bill of Rights.

The right to privacy can be understood as a right to live one’s own life with a minimum of interference by the state and by other private institutions or persons. The right can be imagined as a multi-layered onion, with protection being more intense at its core, and less intense as one peels away the layers and gets to the outer layers of the onion. As the Court explained:

“A very high level of protection is given to the individual’s intimate personal sphere of life and the maintenance of its basic preconditions and there is a final untouchable sphere of human freedom that is beyond interference from any public authority. So much so that, in regard to this most intimate core of privacy, no justifiable limitation thereof can take place… This inviolable core is left behind once an individual enters into relationships with persons outside this closest intimate sphere; the individual’s activities then acquire a social dimension and the right of privacy in this context becomes subject to limitation.”

Given this definition of the right to privacy, the Court had no difficulty in finding that the prohibition of the mere possession, use or cultivation of cannabis by an adult in private for his or her personal consumption in private is inconsistent with the right to privacy provided for in section 14 of the Constitution. The only question in the case was really whether such a drastic infringement on the right to privacy was justifiable in terms of the limitation clause contained in section 36 of the Constitution.

The court raised several compelling arguments to justify its conclusion that this limitation of the right to privacy was not justifiable in terms of the limitation clause.

First, it quoted with approval from the High Court judgment which noted that much of the history of cannabis use in this country “is replete with racism”, and noted that there is a long history of the use of cannabis by indigenous South Africans.

The Court did not note that the use and possession of cannabis was outlawed by the colonial authorities in South Africa partly to prevent interracial socialisation and sexual activity which some legislators at the time thought would be encouraged by the widespread use of dagga. Neither did it comment on the argument that the criminal law often imposes more severe penalties on those convicted of the possession of drugs mostly used by poor people and by black people than on the possession of drugs mostly used by rich people and white people.)

However, the Court did make the following comment about the long history of cannabis use by black South Africans:

“[W]e do not, of course, intend to minimise the fact that the use of dagga is a great social evil in South Africa. Nevertheless, the long-standing indulgence in the use of the substance by a group of which an accused person belongs may well constitute a circumstance to be taken into account in mitigation at any rate where he has been convicted of the use or possession of a small quantity.”

Second, while the infringement on the right to privacy by the criminal law was severe, the purpose of the prohibition (protecting individuals from drug addiction and the harms associated with drugs) was not as pressing as previously thought because the harm of cannabis use was not as severe as previously argued by government “experts”.

In fact, the adverse health and social consequences of cannabis use reported by cannabis users who seek treatment for dependence appear to be less severe than those reported by persons dependent on alcohol or opioid. The court also noted that the harmful effects caused by cannabis are incomparable to those caused by tobacco. Although the court did not spell this out, the logical consequence of this is that it makes little sense to criminalise the use and possession of cannabis but allow the use and possession of alcohol and tobacco.

Lastly, as noted above, attitudes in other open and democratic societies towards cannabis use have changed drastically over the past ten years, providing another reason why the severe limitation on the right to privacy could not be justified.

The court thus declared invalid the relevant sections of the Drugs and Drug Trafficking Act and read words into these sections to ensure that the judgment would have immediate effect – although it also ruled that Parliament could pass its own amendments within the next 24 months to manage the regulation of the private possession, cultivation and use of cannabis – as long as such legislation did not infringe on the right to privacy of individuals.

The effect of the reading-in is that an adult person may use or be in possession of cannabis in private for his or her personal consumption in private. Moreover, the cultivation of cannabis by an adult in a private place for his or her personal consumption in private is no longer a criminal offence. As the court explained:

“An example of cultivation of cannabis in a private place is the garden of one’s residence. It may or may not be that it can also be grown inside an enclosure or a room under certain circumstances. It may also be that one may cultivate it in a place other than in one’s garden if that place can be said to be a private place.”

This ruling does not extend to the use, including smoking, of cannabis in public or in the presence of children or in the presence of non-consenting adult persons. Furthermore, the use or possession of cannabis in private other than by an adult for his or her personal consumption is not permitted.

The ruling also does not extend to the cultivation or possession of cannabis with the intention of selling it. This means that it is still a criminal offence to grow dagga commercially or to deal in dagga. “Dealing in cannabis is a serious problem in this country and the prohibition of dealing in cannabis is a justifiable limitation of the right to privacy.”

The judgment is somewhat vague about how a court will decide when you cultivate or possess cannabis for private use and when you intend to sell that cannabis to others. The court did not impose specific limits on the quantities that you are allowed to possess before it will be assumed that you are dealing in dagga and are no longer merely possessing it for private use. However, judge Zondo provided the following guidelines:

“In determining whether or not a person is in possession of cannabis for a purpose other than for personal consumption, an important factor to be taken into account will be the amount of cannabis found in his or her possession. The greater the amount of cannabis of which a person is in possession, the greater the possibility is that it is possessed for a purpose other than for personal consumption. Where a person is charged with possession of cannabis, the State will bear the onus to prove beyond a reasonable doubt that the purpose of the possession was not personal consumption.”

This means that if a police officer finds a person in possession of cannabis, he or she may only arrest the 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 in terms of the Act.

This leaves some discretion to the police to arrest individuals who are found in possession of cannabis. However, the judgment minimises the possibility that this power will be abused by an over-zealous police officer by making clear that when in doubt, the police officer should not arrest an individual found in possession of cannabis. Zondo explains the practical effect of this as follows:

“It is true that there will be cases where it will be clear from all the circumstances that the possession of cannabis by a person is for personal use or consumption. There will also be cases where it will be clear from all the circumstances that the possession of cannabis by a person is not or cannot be for personal consumption or use. Then, there will be cases where it will be difficult to tell whether the possession is for personal consumption or not. In the latter scenario a police officer should not arrest the person because in such a case it would be difficult to show beyond reasonable doubt later in court that that person’s possession of cannabis was not for personal consumption I will, therefore, not confirm that part of the order of the High Court because we have no intention of decriminalising dealing in cannabis.”