Using cannabis for personal use not a criminal offence – ConCourt rules
Using dagga for personal use is not a criminal offence, the Constitutional Court ruled on Tuesday.
“The right to privacy is not confined to a home or private dwelling. It will not be a criminal offence for an adult person to use or be in possession of cannabis in a private space,” Deputy Chief Justice Raymond Zondo said on Tuesday.
The judgment however did not specify how many grams of cannabis a person could use or have in private.
The ruling follows a Western Cape High Court judgment that found the possession, cultivation and use of dagga for private use was allowed.
The State appealed that judgment in the Constitutional Court, arguing that the decision was not in line with the values of South Africans.
“This Court must invoke its powers under s 172 (1) (b) of the Constitution to order a suspension of the declaration of invalidity for a realistic period to ensure Parliament may correct the defect,” the court said.
The Western Cape High Court also ordered that, in the interim period, prosecutions for personal dagga possession as described in its judgment should be stayed.
Zondo ruled on Tuesday that Sections 4(b) and 5(b) of the Drugs Act, and Section 22A(9)(a)(i) of the Medicines Act were unconstitutional and invalid, to the extent that it prohibits the use of possession of cannabis by an adult in private for the adult’s personal consumption in private.
Zondo said the statutory provisions infringed the right to privacy entrenched in Section 14 of the Constitution and gave Parliament 24 months to correct the constitutional defects in the two Acts.
It would therefore not be a criminal offence to use or be in possession of cannabis for personal consumption or cultivating cannabis in a private place for personal consumption in private.
Zondo said parliament should decide on the quantity of cannabis that an adult person may use, possess or cultivate in order for it to amount to “personal use”.
He said that a police officer would have to consider all the circumstances, including the quantity of cannabis found in an adult person’s possession.
A police officer, he said, could arrest a person if he has reasonable grounds to suspect that the person concerned is in possession of that cannabis for dealing and not for personal consumption.
The courts will ultimately decide whether the person was in possession of cannabis with the intent to deal or for own consumption, he added.