Tag Archive: dagga

Cannabis law – what Sithole told the police

Parliament has amended legislation regarding dagga use and police officers have received instruction from the Police Commissioner

 

Dagga possession and cultivation - the law changes

We wrote last year about the Constitutional Court ruling regarding dagga, or cannabis. The ConCourt judgement effectively decriminalised the possession and cultivation of cannabis in private by adults for personal consumption. The definition of “in private” extends beyond one’s place of residence and includes public spaces, as long as the possession is in a private place, e.g. a pocket, and is discreet.

However, a court judgement, even by the highest court in the land, is not in itself legislation. It was necessary for Parliament to amend legislation before the law could officially be declared changed in response to the ruling. In the interim, police were in the arguably awkward position of having to use their judgement and discretion when faced with circumstances of cannabis possession.

National Prosecuting Authority issues guidelines

Parliament has acted swiftly to change the relevant legislation concerning cannabis and the National Prosecuting Authority (NPA) has issued guidelines to prosecutors to ensure criminal procedure reflects the amended laws. These guidelines have also been delivered to the South African Police Service (SAPS) by Police Commissioner General Khehla Sithole. If you use dagga there are important things you should know.

Cannabis law rewritten

The two primary pieces of legislation concerning cannabis law are the Drugs and Drug Trafficking Act 1992 and the Medicines and Related Substances Control Act 1965. Both have been officially amended to reflect the Constitutional Court judgement. Other legislation, i.e. the Children’s Act 2005, the Child Justice Act 2008 and the National Road Traffic Act 1996, has also been impacted in a lesser way. The Drugs and Drug Trafficking Act and Medicines and Related Substances Control Act now specifically allow for the possession and cultivation of cannabis for private use. Personal consumption of dagga has been decriminalised.

Still an offence…

It is very important to note that dealing in cannabis is still a criminal offence, as is the use of cannabis by children or in the presence of children. Furthermore, driving under the influence of dagga contravenes the National Road Traffic Act, which prohibits “driving under the influence of a drug which has a narcotic effect”.

Smoking cannabis in public is not permitted – it is only the possession and not the use of the substance that is allowed in public, provided it is in a private space (pocket, bag, vehicle). So smoking in the street, in bars or at a rock concert is still an offence.

Determining private use

Because “private use” can take place outside the home, police officers must still rely on their judgement when they find someone in possession of cannabis. The legislation has not specified a quantity that defines private consumption or, conversely, one that constitutes dealing in the substance. Police officers must use discretion in deciding if the amount possessed is for personal consumption or not, and must furthermore ask a series of appropriate questions to satisfy themselves on the matter.

If the police officer is satisfied that the cannabis is for private consumption, then no arrest may be made and the substance may not be seized. If there is any doubt as to the intention to use the cannabis privately, the officer must not make an arrest but must rather open a docket and bring the individual to court by means of summons.

Cannabis law summarised

In summary, here’s what the amended legislation has decriminalised…and still prohibits:

  • Adults may use or possess cannabis in private for personal consumption
  • Adults may cultivate cannabis in a private place for personal consumption
  • Private use is not confined to a home or private dwelling
  • No quantity has been prescribed as constituting private use

  • Possession or use by a child (under age 18) is still prohibited
  • Use of cannabis around a child is prohibited
  • Dealing in cannabis is prohibited and is still a serious criminal offence
  • Cannabis use “not in private” is an offence

Police are accorded a large amount of discretion, which may lead to inconsistencies in implementation. Where there is a clear indication that the cannabis does not qualify as personal consumption (which the guidelines define as “large quantities” and/or an “unsatisfactory explanation”), then normal police procedure must be followed. This includes seizure of the cannabis and the registering of criminal charges and may or may not include arrest, depending on circumstances (e.g. if the suspect poses a flight risk). How these guidelines may be interpreted by different police stations or officers remains to be seen.

Legal advice is still a good idea

The amendments to cannabis use legislation are fresh and the police directive has only recently been issued. It is reasonable to expect police officers to require a period of adjustment. Therefore, any encounter with the law regarding dagga possession and use is best handled with the help of an experienced bail attorney. Cape Town Bail Attorneys, Simon Dippenaar & Associates Inc. is a law firm in Cape Town are experts in criminal defence, with a reputation for handling after-hours bail. You can contact bail lawyers 24/7and know that your call will be answered. Call Cape Town Attorney Simon Dippenaar on +27 (0) 86 099 5146 or +27 76 116 0623.

 

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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

Cape Town Law firm, Simon Dippenaar & Associates Inc. can help. If you need advice regarding a charge of possession or dealing, call Cape Town Attorney Simon immediately on +27 (0) 86 099 5146 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.

Further reading and latest update:

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