Concourt dagga decision awaited
THERE is some irony in governments around the world, including South Africa, trying to prevent the use of sugar through sugar taxes, while at the same time lifting prohibitions on the use of marijuana.
Kwazulu-natal will be affected by this trend. It is common knowledge that the cost of growing marijuana in southern Africa is a fraction of what it is elsewhere. There will be a potentially significant financial upside if large-scale commercial growth becomes lawful.
In some places, marijuana may be used for medical purposes, and in others it may be used for medical or recreational purposes. Examples of areas where use, in some form, is permitted, include California, Washington, Alaska, Nevada, Canada, Italy, Portugal and Uruguay.
Some places have decriminalised the recreational use of marijuana, while others have legalised it. Decriminalising means the use of marijuana is not a criminal offence, but can still result in a fine under certain circumstances. Legalisation means no criminal offence and no penalties at all, unless defined parameters for use are not respected.
Legalisation involves a bigger concession by governments that controlling what people voluntarily ingest is their own personal responsibility, and/or state intervention has a net cost greater than any net benefit.
In South Africa, the use or possession of marijuana is prohibited by the Drugs and Drug Trafficking Act 140 of 1992; the Medicines and Related Substances Control Act 101 of 1965; and the Criminal Procedures Act 51 of 1977.
Recently, in the 2017 case of Prince v Minister of Justice, the authority of the state to restrict what people eat, drink or smoke in their own homes was challenged on the grounds that it is an unjustifiable invasion of an individual’s right to privacy, dignity and freedom. The Western Cape High Court held that the use of criminal law to punish private use of marijuana was not justified.
The court ruled that the relevant sections in the legislation referred to above were unconstitutional to the extent that they prohibited the possession, purchase or cultivation of cannabis in a person’s home for personal consumption by an adult. The court suspended its declaration of invalidity for a period of 24 months, to give Parliament time to make amendments.
The Prince decision has been appealed and should be heard by the Constitutional Court some time this year. Up until the Constitutional Court has ruled on the matter, the possession of marijuana, in the writer’s view, remains an offence.
The outcome of the appeal will be of interest. Given the international trend towards medical uses of marijuana and general legalisation, it is arguable that widespread commercial farming of the crop in KZN is a possibility at some point.
Watson is a partner at Cox Yeats Attorneys practising in the corporate and natural resources law team. He is qualified as both a South African and an Australian lawyer. With a background in corporate and tax law, he advises on a wide range of commercial matters relevant to KZN industries, including chemical manufacturing, transport, sugar, animal feed and commercial property. Watson is the author of significant publications for Lexisnexis, including A Practical Guide to Mergers and Acquisitions in South Africa and A Practical Guide to Trusts. Simon can be contacted on 031 536 8500 or via e-mail: swatson@coxyeats.co.za