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Dagga – It’s now legal – The Con Court ruling explained

Dagga legalisation in South Africa

Dagga legalisation has been big news in the past week. But what exactly does it mean in practice?

Since last week’s Constitutional Court ruling on the possession of dagga for private use, SD Law has been inundated with queries about the practical implications of this decision. How does it differ from last year’s Western Cape High Court ruling? Is possession of dagga now legal? We attempt to answer your questions.

 

The High Court ruling

If you’ve been following our blog you’ll remember that we wrote recently about the difference between possession of marijuana – dagga or cannabis – and intent to deal (read more). We also covered the 2017 Western Cape High Court ruling that allowed the use of dagga by adults at home (read more).

Last year’s ruling cited the right to privacy guaranteed by our Constitution, and allowed for this right to be used as a defence if charged with possession in your own home. As we’ve pointed out previously, that decision did not legalise marijuana use, but it did pave the way for Parliament to enact a change in legislation.

 

What the Constitutional Court ruling means

The Constitutional Court decision of 18 September 2018 went further than the 2017 High Court ruling in that it effectively decriminalised the possession and cultivation of cannabis in private by adults for personal consumption. It’s important to note that the Con Court does not make the laws; it can only rule on the constitutionality or otherwise of existing laws. However, if a law is found to be unconstitutional, the onus is then on Parliament to remedy the fault in the law. So, the law criminalising possession of marijuana is still on the statute books, but the order has been suspended. The Court has provided interim relief that renders it unlawful for the police to arrest adults for private cultivation, possession and use of small amounts of cannabis. Parliament should enact a change in legislation within the next two years.

 

How much is a small amount?

As we explained in our blog post on possession last month, the historical threshold of 115g has been relaxed, in favour of a more pragmatic approach to determining intent. The burden of proof is now on the State to show that the accused intended to supply the dagga in his or her possession to someone else for profit. This might hold true for an amount less than 115g, or a quantity in excess of 115g could still be purely for personal use.

Last week’s ruling did not contain any indication of the quantities that would be considered ‘for private consumption’. It acknowledged that the greater the amount held, the greater the likelihood that dealing would take place. However, it reinforced the onus on the State to prove intent and ensured that police officers would give a potential accused the benefit of the doubt. According to Deputy Chief Justice Raymond Zondo, “…there will be cases where it will be difficult to tell whether the possession is for personal consumption or not. In the latter scenario a police officer should not arrest the person because in such a case it would be difficult to show beyond reasonable doubt later in court that that person’s possession of cannabis was not for personal consumption.”

 

The definition of ‘private’

Another point of difference between the Con Court and the High Court rulings is the definition of privacy. Whereas the High Court was quite specific about the right to privacy providing a defence if found in possession in one’s own home, the Con Court did not specify in the judgement what constitutes a private place. Rather, the Court modified last year’s Order to reflect that a ‘private place’ can extend to more than just one’s literal home. It is probably safe to assume that a home, office, pocket, storage facility or car would amount to a private place.

 

Cultivation

The Con Court ruling also specifically allowed for cultivation of cannabis for private use, and went on to define privacy in the context of cultivation: “An example of cultivation of cannabis in a private place is the garden of one’s residence. It may or may not be that it can also be grown inside an enclosure or a room under certain circumstances. It may also be that one may cultivate it in a place other than in one’s garden if that place can be said to be a private place.”

 

What is the right to privacy?

The right to privacy simply means the right to live your life without interference from the State or from other individuals or entities. The right to privacy is enshrined in the United Nations Universal Declaration of Human Rights: “The Right to Privacy. Nobody should try to harm our good name. Nobody has the right to come into our home, open our letters, or bother us or our family without a good reason.”

Given the iniquitous abuse of this right in the apartheid era, it is unsurprising that our Constitution upholds the right to privacy as a pillar of a fair and just society. The Court stated, “A very high level of protection is given to the individual’s intimate personal sphere of life and the maintenance of its basic preconditions and there is a final untouchable sphere of human freedom that is beyond interference from any public authority. So much so that, in regard to this most intimate core of privacy, no justifiable limitation thereof can take place…”

 

A global trend

South Africa joins 33 jurisdictions around the world where the use of cannabis has been decriminalised or legalised. Canada is the most recent to liberalise its laws on possession and cultivation, with some variance from province to province on the details (e.g. number of plants allowed to be grown and where) but an overall national legalisation framework. The US also has state-by-state legislation, with some states fully decriminalised, some allowing medical use only and some still criminalising all use; but a growing number of states allow recreational use and cultivation, with a varying number of plants permitted to be grown depending on the state.

 

No deal

Remember it is still illegal to deal in dagga! If you grow or carry cannabis for sale or supply to others, you are breaking the law. The relaxation in approach does not extend to dealing in the substance. The right to privacy will not protect you if you sell marijuana, or if you consume it in a public place. Enjoy the new freedom, but don’t abuse it. Consume cannabis responsibly or you could still fall foul of the law.

 

If you have been charged with possession…

Ordinarily, under the doctrine of objective Constitutional validity, the moment a law is declared unconstitutional, the legal position is that the law has always been so. The implications for criminal law are that any prior convictions are invalid, and will be set aside. To prevent disorder, Courts may postpone or suspend the operation of invalidity. In this case, the Court rejected retrospective operation. This means that previous convictions stand. If you would like more information, feel free to contact us – we’re here to help.

 

Contact us

If you need advice regarding a charge of possession or dealing, call Simon immediately on 087 550 2740 or contact us. It is important to know your rights and have legal representation to ensure you are treated fairly and within the law, especially if the police have acted without full knowledge of the recent changes.

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Cannabis – possession or dealing? There’s a big difference!

Cannabis possession vs dealing

 

Cannabis – The seriousness of the crime and the sentence are much greater for dealing, but what determines dealing vs. possession?

 

Many of you may recall that last year the Western Cape High Court ruled that cannabis (dagga or marijuana) can be used by adults in the privacy of their own homes, and may be cultivated for private use (read more). This ruling was founded on the right to privacy. However, it did not decriminalise or legalise cannabis use. It simply allowed for the defence of privacy if charged with possession in your own home. If you are found in possession of dagga outside your home, you are still subject to the full force of the law.

But what is the law? Confusion surrounds the specifics of the offence of possession vs. dealing in cannabis. Here’s how it works.

 

How much cannabis is too much?

Possession of marijuana is illegal and punishable in terms of the Drugs and Drug Trafficking Act 140 of 1992. The amount of cannabis you can possess for your own use is 115g or less. Historically, quantity was the determining factor when an arrest was made involving cannabis – below 115g, the charge was possession. Above that quantity, the charge was the much more serious offence of intent to supply (dealing).

 

Other criteria

Recent cases have challenged the use of quantity as a simple measure of whether or not an accused is holding cannabis for personal use or for supply to others. The Constitutional Court has overturned the previous presumption that placed the burden of proof on the accused. What this means is that, in the past, someone accused of intent to supply, on the basis of possessing more than 115g of cannabis, had to disprove the accusation. Disproving anything is much harder than proving it, so it was often difficult for justice to be fairly served.

Now the State must prove beyond a reasonable doubt that the intention of the accused is to deal. A range of criteria is used to ascertain the purpose of the cannabis in question. For example, is there any profit involved? Someone could be transporting a quantity of cannabis above 115g from a source to a recipient, purely as a friend or conduit. If the go-between does not earn any income from the transaction, but simply transports the drug from one person and delivers it to another, it can be argued that he is not dealing, regardless of the amount on his person at time of arrest.

Of course the opposite can also be true. It is possible to be accused of intent to supply cannabis even if the amount held is below 115g, because the factors used to determine intention are more sophisticated. So breaking a large transaction down into small units will not protect you from a charge of intent to supply, if that is the true purpose of your possession of cannabis.

 

Why it matters

Possession of cannabis is a relatively minor offence. Punishment may include a fine and/or community service. Intent to supply – dealing, on the other hand, can be quite serious, potentially resulting in a custodial sentence. It is also a much more significant crime to have on record, impacting on future employment prospects. So the distinction between possession of cannabis for personal use and intent to supply is a critical one.

 

Contact us

If you are found in possession of dagga, call Simon immediately on 087 550 2740. It is important to know your rights and have legal representation to ensure you are treated fairly and within the law. If you or someone you know has been charged with intent to supply and you need advice, call Simon now or contact us now.

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Cohabitation – What is it?

Cohabitation

Cohabitation vs. marriage – the legal differences

For various reasons, marriage is not for everyone. Some prefer not to marry as a matter of principle; some can’t marry (for example if one party is waiting for a divorce to come through). Others want to live together prior to marriage, to road-test their compatibility. Whatever the motive, the status of cohabitation is generally socially acceptable in South Africa and we often hear the term ‘life partners’ used for committed, cohabitative relationships where there is no marriage.

However, in South Africa there is no ‘law of cohabitation’ and cohabitation is not a recognised legal relationship. Notwithstanding, there are legal consequences of cohabitation and some legislation defines ‘spouse’ in such a way that includes a partner in a cohabitative relationship.

 

What is cohabitation?

Cohabitation refers to a stable, monogamous relationship in which the couple, either male-female or same-sex, chooses not to marry but to live together as spouses. Familiar terms for cohabitation include living together, shacking up, de facto marriage, quasi-marriage, common-law marriage, domestic partnership or private marriage. A cohabitative relationship looks to the observer exactly like a marriage. The only distinguishing feature is the lack of legal sanction.

Cohabitation is defined differently in different legal systems, but there are three universal components: a sexual relationship between the couple, a factual cohabitative relationship (i.e. they live in the same home), and stability of the relationship. There may also be a requirement for a sense of responsibility for each other.

 

Common-law marriage – quashing the myth

Many people believe that if a couple cohabitates for a long period of time, the same marital rights apply that spouses in a marriage enjoy…that a ‘common-law’ marriage exists. This misconception exists in many jurisdictions but it is just that – a misconception. There is no such thing as common-law marriage.

 

Universal partnership

Despite the lack of legal status, the South African courts have ruled that there may be an express or implied universal partnership proper (societas universorum bonorum) in existence between a cohabiting couple. In a universal partnership both parties agree to put their current and future property in common, which would resemble a marriage in community of property.

 

Universal partnerships must satisfy four legal requirements:

  1. The aim of the partnership must be to make a profit
  2. Both parties must contribute to the enterprise
  3. The partnership must operate for the benefit of both parties
  4. The contract between the parties must be legitimate

 

The universal partnership argument can be used to give both parties a share in all property acquired during (and before) the commencement of the relationship. However, if a universal partnership cannot be proven, the private property owned by the cohabitees prior to cohabitation belongs to the partners separately and there is no community of property. Property acquired before the relationship is also exempt from any consequences of the Insolvency Act.

 

Cohabitation agreement

Proving the existence of a universal partnership on separation can add to the stress that already accompanies the end of a relationship. It is much more sensible for a cohabiting couple to draw up a cohabitation agreement at the outset of the living arrangement. A cohabitation agreement is a relatively simple contract that includes details of a couple’s assets, property and the financial contributions each partner makes to the joint home. It is valid when ratified by an appointed lawyer.

 

And that’s not all

There are many other issues cohabitative couples must contend with, should they decide to call it a day. There will be a home and associated mortgage or tenancy and decisions to be made about what happens to it, with the accompanying financial consequences. There may be children of the union. There could be shared debts. There may be insurance policies with both partner as beneficiaries, or a shared vehicle. A cohabitation agreement can help to mitigate conflict when it comes to deciding how these matters will be resolved.

 

If the worst happens

A will is often the last thing on the mind when a couple is caught up in the excitement of moving in together. But it’s an important consideration, particularly a few years down the line when there are children and/or shared property involved. Cohabiting partners have no automatic legal right to inherit from the other, as per the Intestate Succession Act, and no right to spousal maintenance on death, as provided for by the Maintenance of Surviving Spouses Act. If you want to be sure of looking after each other in the event of one or other’s death, it is important to make a will.

 

Free Cohabitation Agreement

Download our free Cohabitation Agreement

 

Contact us for more information

If you are about to move in with your partner and would like to draw up a cohabitation agreement and/or a will, or if you need help with the dissolution of a cohabitative relationship, call Simon today. Simon Dippenaar and Associates are experts in family law, including cohabitation. We’ll explain your rights and responsibilities and make sure your interests are protected. Contact Simon on 087 550 2740 or email contact us.

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Women’s Day 2018 – why is it still necessary?

Women's day 2018

Why are women still fighting for basic human rights? Women’s Day 2018

Every year in South Africa we observe Women’s Day on 9th August, to commemorate the women who raised their voices against racial injustice during the Struggle, marching in 1956 on the Union Buildings in Pretoria in protest at the oppressive pass laws.

National Women’s Day 2018 is intended to celebrate the progress of women in all walks of life in South Africa. Back in 1994, at the dawn of democracy, women constituted less than three per cent of the South African parliament. Today over 40 per cent of parliamentary representatives are women. We tend to observe all of August as Women’s Month, setting time aside each year to mark South African women and their accomplishments.

At SD Law we are proud of the achievements of South African women in so many walks of life, but Women’s Day 2018 also inspires us to reflect on the many inequities that still exist in our country. Why are we not yet where we should be, in terms of equality, fairness and justice? Many women still live in fear of violence from intimate partners, or suffer lower wages than male counterparts (despite legislation to prevent this), or lack agency to conduct their lives meaningfully as they choose. We are left pondering what more we – women and men – need to do to bring about lasting change and to create a society that is fairer for all.

Several things have happened recently that have given us pause for thought.

 

#TheTotalShutdown

On 1 August, marches took place across South Africa calling for an end to gender-based violence (GBV). Petitions were handed over to government officials, demanding stronger government action against GBV, and marches brought major cities like Tshwane to a halt. Men were asked not to attend the march, and to support their women friends, family members and colleagues by staying away from work that day, or at the very least refraining from any economic activity for the half hour between 13.00 and 13:30.

Gender-nonconformists and members of the LGTBQI community took part, but cis men were not invited, because men are the (most common) perpetrators of violence against women. On the one hand, we understand the sense of sisterhood that the march organisers wanted to invoke. On the other hand, a) not all men violate women and b) men need to be part of the fight to end violence against women. Men who abhor violence must be vocal and must take action. They must call their fellow men out not just on violent conduct but on misogynistic mentalities and behaviours that foster a culture that allows GBV to happen. The exclusion of men from an event like #TheTotalShutdown somehow contradicts the ultimate objective of the marches – to create a society where men and women live together in mutual respect and without fear.

 

The Allbright Club

Recently a women’s business networking club in London, called the AllBright Club (after US Senator Madeleine Albright, famously credited with saying, “there’s a special place in hell for women who don’t help other women”), hit the headlines because it appointed a man as Chairperson. The founders, Debbie Wosskow and Anna Jones, have been widely criticised, but have defended the appointment because “…the group is operating amid the uncomfortable realities of scarce finance, where men still control the majority of start-up capital, so men have to be brought on board…”

This is a tricky one. Surely the symbolism of having a male Chair of a women’s networking organisation is counterintuitive, if not counterproductive. On the other hand, Wosskow and Jones live in the real world, and if the club is to succeed, to advance women in business, it needs finance. Is it ironic that their cause will find more favour if a man pleads their case to investors? Yes. Is it wrong? Absolutely. But to challenge that iniquity (and that inequity) they have to work within the system to change it.

We know not everyone will agree with us. But organisations like the AllBright Club want to see a world where men and women have equal access to capital, equal opportunities to succeed in business, and an equal share of resources and assets. They are not trying to create a parallel, women-only universe. So men need to be part of the vision and part of the machinery that achieves that vision. Enlightened men should have no problem with this concept.

 

Mothers vs. lovers

Finally, we were saddened and frustrated by recent news from a friend: her husband left her because she was “spending too much time running after their son”. Their son. Said son is eight years old – a child. And his father is jealous of the time his mother spends with him. It’s hard to know how to respond to such an antediluvian sentiment. A woman, with a busy professional job, contributing equally to the household finances, raising a child in a supposedly modern relationship where parental responsibilities are shared, has been criticised and abandoned because she is too much of a mother and not enough of a lover. No doubt if her time were allocated differently, there would be plenty of criticism of her for not being a good enough mother.

 

The problem is patriarchy

The problem is not one of whether men march in protest at GBV with women or not, or whether it is right or wrong to appoint a man to the Chair of a women’s business club. The issue is one of patriarchy: a social structure that insists a woman be perfect mother, dedicated homemaker, financial partner and available lover all at once; a social structure that dictates that the women’s club will stand a better chance of raising finance with a man at the helm; a social structure that allows women to be so denigrated and violated that they are forced to rise up in protest, and prefer to do so without the presence of the very men who abuse them.

Patriarchy is the construct that must be challenged. And it can only be changed with the input and influence of all members of society, not just half of it. If men are the problem, they must be part of the solution.

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Eviction process challenged in court – the PIE gets teeth

Eviction process challenged in court

Court ruling suggests more active judicial management of the eviction process

Eviction process – Property owners and tenants alike have rights under South African law; and when an eviction notice has to be served, it is important to consider the rights (and responsibilities) of both parties, to be sure that fair and just treatment is accorded to everyone. Our Constitution exists to protect all citizens and ensure a rights-based approach is taken in matters of legal dispute. An eviction notice that came before the Constitutional Court last year provides a test case for the accountability of housing lawyers and the judicial system in safeguarding the rights of the most vulnerable in our society.

In the the case of Occupiers of Erven 87 & 88 Berea v De Wet, Christiaan Frederick N.O. and Another, appeal was made under the PIE Act to the ConCourt after the High Court refused to rescind an eviction order. Here we look at the facts of the case and draw some conclusions from the judgement.

 

History of the eviction notice

An abandoned block of flats in Berea, Johannesburg, was purchased by a new owner following liquidation of the former landlord. The building was occupied by 184 residents at the time, some for as long as 25 years. In order to carry out renovations and restore the building to residential letting standards, the purchaser wished to evict the sitting tenants and served them with an eviction notice, following the procedures set out in PIE.

The 184 occupiers were represented in court by four of their peers, who were known as the “Appearer Occupiers”. These Appearer Occupiers asked the court for a postponement of the hearing to give them time to seek legal advice and representation. However, when they appeared in the High Court, they consented to a draft eviction order, leaving the remaining 180 occupiers somewhat stunned. The occupiers sought their own legal advice and applied to the High Court to have the eviction order rescinded. The High Court turned down the application, on the basis that the eviction notice was not in contravention of PIE and the eviction court had discharged its duties faithfully.

A further application for leave to appeal was refused by the High Court and the Supreme Court of Appeal.

 

What happened next?

The case was based on a series of misunderstandings. The Appearer Occupiers said they had not consented to an eviction order. They argued that even if they had consented, their consent was not legally valid; and the court had an obligation to ensure the fairness of any eviction order in the light of all relevant circumstances. They maintained that the eviction order should have been rescinded.

The Respondents argued that the applicants had lost the right to appeal because they had agreed to the eviction order in the first place. They also said there was no evidence that the occupiers would be made homeless or that they had made any attempts to find alternative accommodation. Therefore the eviction process was fair and an appeal was not warranted.

 

What did the judges consider?

The Constitutional Court reviewed the judicial oversight functions of the eviction courts under PIE. How great a duty does an eviction court have in determining the validity of the mandate between the occupiers and their representatives? How far should the eviction court go to ensure the consent is legitimate? In this case, were the non-Appearer Occupiers within their rights to request the eviction order to be rescinded?

 

The ConCourt decision

The Constitutional Court ruled that where legal representatives consent to judgements without proper authority, the judgement is not valid. In other words, the Appearer Occupiers in this case knew the main body of occupiers needed time to seek legal representation, but the Appearer Occupiers did not allow for this in the eviction process. In the face of the resulting eviction order, the occupiers “had no legal representation when the order was obtained against them,” according to the Court. The Court also held that the occupiers’ consent to the eviction order should have been given “freely and voluntarily with the full awareness of the rights being waived,” and this did not occur. The occupiers were not aware of their rights and therefore the consent they gave to the postponement could not be considered informed consent in the light of the eviction order. Informed consent is a guiding principle of the Constitution. As a result, the Appearer Occupiers’ consent was not binding on the occupiers.

 

Conclusion

The ConCourt judgement raises some interesting questions and may signal a new role for the courts in matters of eviction. It reinforces the function of the courts in protecting the poor and vulnerable in our society. This case places an increased burden on the courts and property owners, the latter now having to ensure a legally valid and binding mandate exists before Appearer Occupiers can enter into court-ordered agreements.

The courts may now have to scrutinise eviction applications carefully to prevent any ambiguities between Appearer Occupiers and the occupiers they represent when resisting an eviction application. This would seem to be a victory for social justice; with this judgement the Constitutional Court is refining its stance on active judicial management of eviction applications. Whether this leads to fairer, more just outcomes for all parties or simply brings the process to a grinding halt remains to be seen.

 

Need help with an eviction notice?

If you are a landlord facing litigation be aware that the courts will be more rigorous in exercising their judicial functions. We act for both landlords and tenants and know the challenges faced by both parties. Visit Eviction Specialists

We have an intimate knowledge of the legislation from both sides, so if you need help navigating the eviction process, whether as landlord or tenant, call us now on 087 550 2740 or contact us.

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#MeToo – 16 Days of Activism

#MeToo - A woman silenced by violence and sexual abuse.

As we observe the global 16 Days of Activism for No Violence Against Women and Children, we have been moved to reflect on the portrayal, images and experiences of women in our society, especially in light of recent events in the media.

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Sexual harassment – Misconduct that plagues a workplace

Sexual Harassment #MeToo

 

Sexual harassment is making headline news worldwide. Just how pervasive this is has been highlighted in recent months as women across the world speak out for the first time, as the #MeToo campaign gains momentum.

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