South Africa’s apex court has ruled on the issue of the use, possession and cultivation of cannabis by adult persons in private.
On 18 September 2018, the Constitutional Court handed down its much-anticipated judgment in the consolidated matter of Minister of Justice and Constitutional Development and Others v Prince; National Director of Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others v Acton and Others  ZACC 30 (Cannabis judgment).
The judgment deals with the constitutionality of the prohibition and criminalisation of the use of cannabis by adult persons in their private dwellings. The Drugs and Drug Trafficking Act 140 of 1992 (Drugs Act) read together with the Medicines and Related Substances Control Act 101 of 1965 (Medicines Act), prohibits and criminalises the use, possession, purchase and cultivation of cannabis by any individual in South Africa. The relevant provisions of the legislation are as follows:
1. Drug Act
- Section 4(b) and 5(b)
- Part III of Schedule 2
2. Medicines Act
- Section 22A(9)(a)(i)
- Schedule 7
History – previous legal challenges relating to cannabis
Gareth Prince (Prince), one of the cited parties in the Cannabis judgment, is a practicing Rastafarian, and holder of a law degree, who resides in Cape Town.
When Prince applied to the Law Society of the Cape of Good Hope to register his contract of community service, the law society refused. Subsequently, when Prince applied to the law society to be admitted as an attorney, they refused once again.
The law society argued that Prince held two previous criminal convictions for possession of cannabis and that he openly admitted that he will continue smoking cannabis (even in the face of legal sanction). The law society therefore did not believe that Prince could be classified as a fit and proper person to practice as an attorney. Prince, on the other hand, argued that he was required to use cannabis as part of his religion and the law society’s decision adversely affected his advancement in society and violated his right to freedom of religion.
In both matters, the Constitutional Court held in favour of the law society. In other words, Prince was unsuccessful on both occasions.
Prince v President of the Law Society of the Cape of Good Hope and others  JOL 2202 (C)
Prince v President of the Law Society of the Cape of Good Hope & others  JOL 9305 (CC)
After these judgments, it seemed to be settled that the use, possession and cultivation of cannabis in South Africa would continue to be illegal (except in the limited circumstances as prescribed by Drugs Act and Medicines Act). However, this was not the case.
Three individuals separately challenged the constitutionality of certain provisions of the Drugs Act and Medicines Act in the High Court on the basis that these provisions violate the right to privacy (as contained in s14 of the Constitution). Since the challenge related to the same issue, the High Court elected to consolidate the matters.
At the High Court, the provisions of the Drugs Act that prohibits the use and cultivation of cannabis by an adult in private for personal consumption was declared as unconstitutional. The provision in the Medicines Act that criminalises the use and possession of cannabis by an adult in private for personal consumption was also declared as unconstitutional. The High Court found that the legislative provisions unjustifiably limited the right to privacy.
The unconstitutionality applied only to the extent that the provisions prohibit the use, possession or cultivation of cannabis by an adult person in private for personal consumption in a private dwelling (ie at home).
The order of the High Court was then referred to the Constitutional Court for confirmation (as required by the Constitution).
In a unanimous judgment, the Constitutional Court ultimately agreed with the order of the High Court. However, and interestingly, the court removed the High Court’s limitation that the use, possession or cultivation of cannabis is restricted to one’s “home” or “private dwelling”.
The court held that the right to privacy extends beyond the boundaries of the home. The requirement that use, possession or cultivation must be private remains.
The Cannabis judgment effectively means that adult persons are now permitted to use, possession and cultivation of cannabis in a private place for personal consumption.
The court found that the criminalisation of cannabis (and its history) was characterised by racism and that many indigenous South Africans used cannabis. The court also found that the alleged harm of cannabis was not as severe as historically argued. It also makes little sense to allow the use and possession of alcohol and tobacco and criminalise cannabis.
The court has called upon the legislature to effect certain changes to the Drugs Act and Medicines Act to align the legislation with the outcome of the Cannabis judgment.
Implications for society
The Cannabis judgment undoubtedly has implications for South African society.
Since the initial challenges launched by Prince (as far back as 2002 and 1998), there are now 33 countries (including Australia, Canada, Spain and Switzerland) around the world that have decriminalised and legalised the use of cannabis. Attitudes towards cannabis have changed, and continue to change, in many countries. These were facts that the High Courts used in support of its ruling and this was mentioned by the Constitutional Court in the Cannabis judgment.
For certain religious groups and persons who make use of cannabis for medicinal reasons, the Cannabis judgment will be seen as a victory for various constitutional rights (including, the right to freedom of religion and the right to privacy).
The implications for society can be summarised as follows:
- adult individuals are now permitted;
- to use, possess and cultivate cannabis;
- in private; and
- for personal consumption only
The use (including smoking) of cannabis in public or in the presence of children or non-consenting adults is not permitted.
In order to determine if a person is in possession of cannabis for personal consumption only, the amount of cannabis found in possession must be used to make that determination.
The higher the amount, the higher the likelihood that the cannabis is not only being used for personal consumption. The Constitutional Court has left it up to the legislature to determine the permissible amount of cannabis that can be legally possessed by an adult.
Implications for the workplace
Given that the Cannabis judgment does not strictly locate private to an adult person’s home or private dwelling, the implications for the workplace (both from the perspectives of the employer and employee) should be considered. The judgment also raises other employment-related questions relating to discipline, incapacity, occupation health and safety and vicarious liability within the context of drug (cannabis) use and abuse.
We consider the general implications for employers through a series of questions and answers in the table below: