Legalising Cannabis
Minister of Justice and Constitutional Development and Others v Prince (2018)
Do individuals have the right to smoke marijuana in the privacy of their homes?
Background
Garreth Prince began his activism as a second-year law student in 1989, when he was arrested outside his home for cannabis possession. The oppression faced by the black and brown Rastafarian community had inspired Prince to study law.
When Prince completed his law degree in 1998, he applied for admission as an attorney, but was barred by the Cape Law Society. He was deemed an ‘unfit and improper person’ for the profession as a result of his previous convictions for cannabis possession.
In 2000, Prince argued that the Rastafarian community should be exempt from the criminalisation of cannabis as they used it for religious reasons. He challenged the decision of the Law Society in the Constitutional Court. The Court found that in order to protect the public’s interest, no exceptions would be made for the use of cannabis for religious reasons. Prince was therefore not admitted as an attorney.
After this 2000 judgment, Prince continued his activism for the next 18 years, lobbying for the decriminalisation of cannabis use.
Path to the Constitutional Court
In 2018, Prince approached the High Court again, this time on different grounds. He argued that the use of cannabis in private settings should be allowed. The High Court found that the provisions in the Drugs Act and Medicines Act that criminalised the use of cannabis in a private setting violated the constitutional right to privacy. The court should therefore strike down these provisions.
The matter was brought to the Constitutional Court to confirm the High Court’s judgment.
In the meantime, Kathleen (“Myrtle”) Clarke and Julian Christopher Stobbs, known popularly as the ‘Dagga Couple’, were arrested in their home in 2010 for possession of cannabis. Their case was halted in the High Court, pending the outcome of Prince’s case.
Some of the Arguments
Garreth Prince
Prince and the other applicants argued that the criminal prohibition of the use and possession of cannabis in their own homes and ‘properly designated places’ was unconstitutional. They argued that the Drugs Act and the Medicines Act, which prohibited the use of marijuana, limited their right to privacy.
Minister of Justice & Constitutional Development
The Minister argued that the prohibition of the use and possession of cannabis is justified because cannabis can have harmful effects on the brain and body, depending on the user. The Minister also presented police records that showed that many drug users commit crimes such as armed robbery, housebreaking, assault, and even murder to fund their drug addiction. Also, many cases of domestic violence are related to drug use.
What did the Constitutional Court decide?
The Constitutional Court confirmed the High Court judgment. It declared that:
(a) the Drugs Act was unconstitutional to the extent that it prohibits the use or possession of cannabis for adult personal private consumption;
(b) the Drugs Act was unconstitutional to the extent that it prohibits the cultivation of cannabis by an adult in a private place for private use; and
(c) the Medicines Act was unconstitutional to the extent that it made the use or possession of cannabis by an adult in private for personal consumption in private a criminal offence.
The Court suspended the ruling so as to allow Parliament the opportunity to rectify these Acts.
I am of the view that the prohibition of the performance of any activity in connection with the cultivation of cannabis by an adult in private for his or her personal consumption in private is inconsistent with the right to privacy entrenched in the Constitution and is constitutionally invalid.
Justice Raymond Zondo
from the Prince Judgment, 18 September 2018
The journey came full circle nearly three decades later. The harder the battle, the sweeter the victory.
Garreth Prince
21 September 2018
Impact and Significance
The decision was greeted with jubilation in many quarters. Because this ruling had immediate effect, the state was now barred from arresting or convicting anyone for mere possession of cannabis in circumstances which suggest private use.
However, a number of rehabilitation centres that had been studying the long-term effects on cannabis users for 25 years believed that the ruling could spell disaster for the country. They argued that legalising the private use of cannabis could increase substance abuse in the country, and that it would become increasingly difficult to regulate the use of the drug.
I can see a major disaster is about to happen. People will be driving under the influence of cannabis, going to work and school after using it and management won’t have the power to regulate it.
Gad Avnon
Harmony Retreat Rehabilitation, 19 September 2018
Grey areas remain. For example, in the workplace it is uncertain whether employers can take action against someone for allegedly being under the influence of cannabis. This will depend, to some extent, on whether the substance is still affecting the employee’s ability to function and perform normally, but this can be hard to ascertain.
A number of experts have indicated that the judgment was an opportunity for South Africa to become a world-class leader in supplying high-quality cannabis to the global market.
