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“One in every fourteen people are regular users” of cannabis in South Africa as reported by the United Nations World Drug Report of 2014.
The prohibition of cannabis can be backtracked as far as 1908 when the first law prohibiting the sale of cannabis was put into motion.
Thereafter, several laws were enacted prohibiting the use of cannabis. Presently, the most well-known Acts which prohibit cannabis are the Drug Trafficking Act and Medicines Control Act.
On the 31st March 2017, a new development was seen in the sphere of cannabis when Judge Davis handed down a judgment regarding the use of cannabis.
An application was brought to the Western Cape High Court requesting the legalisation of cannabis.
The grounds on which they relied upon were that the prohibition of cannabis violated ones right to equality, dignity and freedom of religion, rights which are entrenched in the South African Constitution. However, Judge Davis dealt with the infringement of ones right to privacy when considering the issue.
Judge Davis found that the prohibition of cannabis infringed on ones right to privacy. Our laws do provide for an infringement upon our rights as long as they are justified. However, Judge Davis determined that the infringement upon ones privacy was not justified in these circumstances. Therefore the parts which deal with the prohibition of cannabis in the Drug Trafficking Act and Medicines Control Act were found invalid.
Does this mean South Africans are entitled to possess, cultivate and use cannabis freely? The simple answer is NO. So what are the consequences of Judge Davis’s ruling?
The ruling has declared that South African’s are entitled to ONLY possess, cultivate and use cannabis in their private homes. Therefore the sale of cannabis and use of it publically is still illegal.
The invalidity of the relevant sections has been suspended for 24 months. Parliament has 24 months within which to amend the laws in order to bring them in line with Judge Davis’s ruling. Before Parliament will amend the laws, the Constitutional Court needs to give their stamp of approval on Judge Davis’s ruling. Everyone remains hopeful that there will be a positive outcome.
The question on everyone’s mind - what happens if you are caught and prosecuted with the possession, cultivation or use of cannabis in your private home during this change?? The answer to this is that one is able to raise the defence of “right to privacy” and prosecution must be stayed until the finality of the Constitutional Court.
In conclusion, South Africans need to remain attentive as to the Constitutional Court’s outcome before any celebrations or uproars are taken to the streets.
Bailey Haynes Attorneys in Cape Town offer a 30 minute free legal consultation.
For legal assistance, please contact us.
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