High time:
• Recreational cannabis use not limited to a person’s private dwelling, unanimous ruling reads
Marijuana lobbyists celebrate inside the Constitutional Court in Johannesburg on Tuesday, after the court opened the gates for adult South Africans to legally grow and use cannabis privately.
The Constitutional Court opened the gates on Tuesday for adult South Africans to legally grow and use cannabis privately, while still criminalising commercial use despite its potential economic benefits.
The landmark judgment by deputy chief justice Raymond Zondo unanimously declared that sections of the Drugs and Drug Trafficking Act and the Medicines and Related Substances Control Act are inconsistent with the constitution.
The court suspended the order of invalidity for 24 months, to allow parliament to deal with the necessary legislation.
Parliament has already said the judgment could entail the introduction of a new bill, or the executive introducing one to give effect to the order.
The court heard an application for leave to appeal, as well as a confirmation application in November 2017 of a judgment by the High Court in Cape Town, which declared the same sections unconstitutional, saying the right to privacy was at the heart of the case.
The top court went one step further than the high court by not limiting the recreational use of cannabis to a person’s private dwelling by saying the right to privacy was not confined to a home or private dwelling.
Through a reading-in of the two acts, the court however ensured it would neither be a criminal offence to use or be in possession of cannabis for private consumption, nor to cultivate it in a private place for personal consumption.
The court did not specify how much cannabis would be allowed, with Zondo saying doing that would have breached the doctrine of the separation of powers. He left it up to parliament to establish the amount that would constitute personal use. The department of agriculture, forestry & fisheries noted the ruling, saying it recognised the developments around the world where various countries were decriminalising cannabis either for medicinal use, recreational purposes, or for both, citing Canada, Uruguay, the Netherlands, Panama, Lesotho and Zimbabwe.
“Some US states where the use of the plant has been legalised show a huge potential for job creation in both the medical production space and in the recreational space,” the ministry said. “In 2017 alone, it accounted for over 100,000 active jobs with billions of US dollars contributing to their economy,” it said.
It said in terms of the current legislation, the mandate for regulating hemp lies with the department of health as well as the department of justice & constitutional development, and that it has mainly engaged these two departments so far.
The department is leading the interdepartmental team that is developing a new regulatory framework for hemp, it said.
The IFP has championed the legalisation of medical marijuana by introducing the Medical Innovation Bill, which in 2017 opened the doors for citizens to apply to the South African Health Products Regulatory Authority for a licence to grow, cultivate and manufacture cannabis for medicinal purposes, the judgment noted.
“It is our hope that the unanimous judgment handed down today by the full bench of the ConCourt will also see the fasttracking of legislation for the commercialisation of hemp in our country which will boost the economy and create jobs,” IFP chief whip Narend Singh said.
IFP spokesperson Mkhuleko Hlengwa said there was a need over the next 24 months to “drill down to the entire value chain of what this judgment means now, so that it can be regulated”.
He said a controlled environment would be necessary, especially when looking at the economic spin-offs. “We need to pull it out of the shadows, put it on the table and create an environment that everybody will understand,” Hlengwa said.
Economist Mike Schussler estimates that the cannabis industry could add 0.4%-0.5% to SA’s economy, if fully legalised, considering what the tobacco industry accounts for, as the industry would then be taxable.
Schussler said as the court only legalised private use and private growing, the economic impact would be less than a fully legalised industry, but that even at this stage police resources would be redirected to fight other, serious crimes.
Cannabis laws shifting:
Given what deputy judge president Raymond Zondo is hearing at the eponymous commission on state capture, it is ironic that he should be the one to hand down the unanimous judgment legalising the private use of cannabis. Presumably, he could use a toke.
Zondo’s judgment brings SA somewhat in line with international trends, which are recognising that consuming small amounts of cannabis is generally harmless, and the effect of a ban is counterproductive and invasive. One of the tricky aspects of the judgment is that essentially the same issue has come up before the Constitutional Court in Prince v President of the Law Society of the Cape of Good Hope in 2002. In this case, Prince II, as it is known, the court refused to contemplate unbanning pot.
The apex court’s judgment sought to distinguish Prince II from the current case, which was decided on the basis of the constitution’s protection of privacy. Prince II involved the question of whether the laws prohibiting the use of cannabis were contrary to freedom of religion. This is slightly disingenuous.
In Prince II, the court did canvass the issue of whether cannabis is addictive and found persuasive the medical evidence that it was at least potentially harmful. In the current case, however, the court posed the question slightly differently, using the argument that has been historically used by pot smokers since time immemorial: what about alcohol? Since alcohol is plainly more harmful than cannabis, why ban the one and not the other?
For the court, the deeper question was whether the harm caused, assuming there is harm, was of a sufficient magnitude to justify invading citizens’ privacy rights. In the event, the court found this time, it was not. Hence, the court found, in line with the lower court judgment, that the prohibition of cannabis is invalid to the extent that adults can use or possess it in private for their own consumption.
It did go slightly further than the lower court in finding that private cultivation for the same purpose would also be consistent with citizens’ privacy rights. And it found, contrary to the lower court, that “private” does not mean the user’s own home, but anywhere else that is not public too.
But having used exclusively the constitution’s protection of privacy as a justification, it was constrained from going further. Hence, the court did not condone the commercial cultivation of cannabis. “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. I will, therefore, not confirm that part of the order of the high court because we have no intention of decriminalising dealing in cannabis,” Zondo found.
But can this be true? If the court is persuaded that the harm caused by using cannabis is insufficient to justify limiting the right to privacy, then surely the whole pack of cards comes tumbling down.
It is worth noting how fast the ground is shifting. Canada has legalised recreational cannabis, becoming the second country in the world to do so. Already, cannabis producers are zooming up the Canadian stock exchange, and Aurora Cannabis has bought rival grower CanniMed in the sector’s first $1bn takeover. Drinks makers have also been rushing to adapt to the new circumstances. Beer maker Molson Coors plans to sell cannabis-infused beer in Canada in 2018. Even Coca-Cola is reportedly considering making a cannabis-infused health drink.
The Constitutional Court referred to the growing international acceptance of cannabis consumption, but it is up to the legislature to come up with a definitive policy. The apex court’s judgment provides a basis for SA to come up to speed with international trends. It’s no real justification to argue that since SA’s police have been unable to stem the growth of the cannabis trade, it should be legal to produce it commercially.
But if it’s legal to use, it’s only a matter of time before its commercial viability will force its way on to the legislative agenda.
THE APEX COURT’S JUDGMENT SOUGHT TO DISTINGUISH PRINCE II FROM THE CURRENT CASE