Have a toke, just not yet

ON MARCH 31, a judgment allowing for the private use and cultivation of cannabis was handed down by the Western Cape High Court.

There has been much confusion regarding the effects of the judgment, so – as a group of interested first-year law students at Rhodes University – we thought we could help readers clarify the situation.

A number of applicants (notably Jeremy Acton, the leader of Iqela Lentsango: The Dagga Party of South Africa, and Gareth Prince, a law graduate who the Constitutional Court refused registration of his law articles because of his Rastafarian-inspired cannabis use) brought their case to the court advocating for the right to use cannabis.

They argued that its prohibition was not in accordance with the constitutional principles of equality and freedom of religion. Moreover, and with the help of court-appointed parties, the applicants argued that the prohibition breached one’s constitutional right to privacy.

While the court complained that the application was somewhat broad, it found that the application was focused on the legalisation of the private use and cultivation of the plant.

After hearing argument from the state and applicants, the court decided that the private possession, cultivation and use should be legalised.

Importantly, the judgment specifies use in a private home as it focuses on the individual’s use and does not condone supplying etc.

Does this then mean there is “nation- Secondly, this may take some time. According to Rule 16 of the Constitutional Court, a copy of the order must be sent to the Constitutional Court within 15 days of the giving of the order of constitutional invalidity.

It is within these 15 days that parties have an opportunity to appeal or review the decision.

The order made by the High Court was on March 31. Therefore, by April 14, if parties did not intend to appeal or review the matter, the Chief Justice would have directed how to deal with it.

What is perplexing about the matter is that the order of the Western Cape High Court not only stayed prosecutions on individual use and growing, but also declared that the judgment would “be deemed to be a defence to a charge … [of] possession, or cultivation of cannabis in a private dwelling”.

This effectively means that the court bypassed section 172(2) of the Constitution and allowed its judgment to have “force” in the sense that people can now smoke and grow cannabis in a private dwelling.

We think the court overreached itself here, and that people should be wary of using dagga until the Constitutional Court either confirms the order, or indicates otherwise.

In short, the judgment is a liberating one and should be celebrated by lighting up … but not just yet.

The writers are first-year law students at Rhodes University