Clarity needed after cannabis ruling
Parliament may define what is a ‘private place’ and how much cannabis could constitute dealing
This week’s Constitutional Court order confirming the right to private cannabis use was celebrated by stoners in South Africa. But it has also left them, as well as activists and the police, speculating about what exactly is allowed.
On Tuesday, Deputy Chief Justice Raymond Zondo confirmed in a unanimous judgment that the legislation criminalising the private use, possession and cultivation of cannabis by adults is unconstitutional.
Parliament has two years to amend the legislation to bring it in line with the Constitution, according to Zondo’s judgment.
Inside the Constitutional Court, Rastafarians sang praises to the Most High. Outside the court they blazed premium-grade cannabis and continued their chants.
The judgment is a long-fought-for victory for ganja activists Gareth Prince, Ras Menekel Wentzel and the leader of the Dagga Party, Jeremy Acton, as well as Myrtle Clarke and Julian Stobbs, aka the Dagga Couple.
But the court decided not to specify exactly how much cannabis a person may, without attracting criminal sanction, grow or possess, saying this was a job for Parliament.
The ruling has also led to speculation about what a “private place” actually means. Is the consumer’s car a private place? Is a festival held on private land a private place? Is a bar or a coffee shop — where cannabis is available but not for sale — a private place?
The judgment has triggered a review of the police’s standard operating procedure, said national police spokesperson Vishnu Naidoo.
“Our legal services, the department of justice and the National Prosecuting Authority are currently formulating the [response]. We need to draw up an SOP [standard operating procedure] and a directive to our members, stating how to act and what can we do when someone is found in possession of it [cannabis].”
Acton said: “We have to declare our spaces private. Put up a sign at your garden that says this is private. If you hotbox your car I believe it’s a private space.”
He said the court order has put an end to cannabis users’ “paranoia” of encountering police in public and private spaces. He believed the term extends to a person’s clothing and car and to privately owned properties.
“We should be able to go to our festivals and parties with the herb. Cops just have to learn how to chill and leave people with their stuff and only take them to court if there’s like, a truck load,” Acton said.
Constitutional law expert Pierre de Vos said the general legal principle states that a private place is “any place which the public would not automatically have access to. So your car, your room at university, a hotel room and so on”.
De Vos said Parliament would probably narrow the definition and approve the test for whether someone is in possession of cannabis for private use or is selling it illegally.
“Parliament will probably have to provide definitions to what is a private place and might want to say what are the factors to take into account to prove that you were intending to deal in cannabis. So there’s still some discussion on that, to see if Parliament will deal with this as it does with alcohol or differently,” De Vos said.
Until Parliament amends the legislation, Zondo left it to the police officer encountering a person with cannabis to determine whether it is for personal or commercial use.
If a police officer finds a person in possession of cannabis and suspects it’s not for personal consumption “he or she will ask the person such questions as may be necessary to satisfy himself or herself whether the cannabis he or she is in possession of is for personal consumption”, Zondo wrote.
“If, having heard what the person has to say, the police officer thinks that the explanation is not satisfactory, he or she may arrest the person. Ultimately, it will be the court that will decide whether the person possessed the cannabis for personal consumption.”
Where the police are in doubt, they should err on the side of not arresting. The judgment reads: “... there will be cases where it will be difficult to tell whether the possession is for personal consumption or not. In [this] scenario a police officer should not arrest the person …”
The police directive clarifying what to expect will be finalised next week. In the meantime, stoners shouldn’t think they’re safe carrying their spliff on the streets, Naidoo said.
“People mustn’t get too excited because, at the end of the day, there are limitations in the judgment. We have to enforce the law the way it’s currently written.”