Tag Archive: marijuana legalisation

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.



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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A joint account – just how legal is marijuana following the High Court ruling?

Marijuana Legal in South Africa High Court Details
On 31 March the Western Cape High Court ruled that marijuana (dagga or cannabis) can be used by adults in the privacy of their own homes, and may be cultivated for private use. The decision was based on the view that banning use of marijuana is an infringement of the right to privacy. Undoubtedly this was cause for celebration for many people in South Africa. But some of the jubilation may have been premature. This ruling does not mean that marijuana use has been decriminalised. Let’s look at exactly what is and is not allowed as a result of the judgement.

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To legalise marijuana, or not to legalise? That is the question.

Legalise Marijuana in South Africa

There is no ‘one size fits all’ approach to dealing with marijuana. Information about the advantages and disadvantages of drug use is widely available but everyone interprets that information differently to arrive at their own conclusions, often widely divergent.

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Should marijuana be legalised in South Africa?

A very controversial subject – everyone has an opinion and there are many conflicting views. In this article, we’ll outline some background information with special relevance to South Africa.

Marijuana Legalisation South Africa


Marijuana / Cannabis

Marijuana, the dried leaves and flowers of the hemp plant, is popularly known as cannabis or hashish, bhang, hemp, kef, kif, charas and ganga. Less formally, it is known as dope, hash, grass, pot, blow, weed and dagga and it should not be confused with the range of hard drugs and toxic substances available – cocaine, heroin etc.

Medical cannabis, or cannabinoid medicine, comes in the form of pills, liquids or sprays. Use is fairly widespread but there are conflicting views on whether or not these medicines have positive effects.


Uses of marijuana

Four main uses of the plant are:

  • Recreational
  • Medicinal
  • Industrial
  • Spiritual

Recreational use of cannabis can make the user feel relaxed, happy and confident, but the downside is feeling dizzy, tired and nauseous. Some users even experience hallucinations. There is a danger that recreational use could develop into addiction, but no evidence that a marijuana habit leads to more serious substance abuse, e.g., crack cocaine, heroin, etc., as has often been argued by opponents of legalisation.

Versions of marijuana are available under specific circumstances for pain relief and the treatment of certain medical conditions. Extensive research has been conducted worldwide into the benefits of medicinal cannabis.


South Africa and the rest of the world

The legal position regarding drugs and drug use in South Africa is clear: it’s illegal, whether for recreational or medical reasons. However, recent court cases such as Prince v President and the case of Stobbs and Clarke have opened the door for a discussion about the use of marijuana. (As a matter of interest, marijuana / cannabis is the most popular illicit drug in South Africa.)

Most of the arguments about legalising drugs relate to marijuana, which is viewed as a ‘soft’ drug, rather than ‘hard’ drugs such as heroin or cocaine, generally seen as more dangerous substances.

Writing in the South African Medical Journal, Parry and Meyer believe that further research is essential and they suggest a close look at the experiences of countries that have softened or removed the criminal laws surrounding marijuana (Netherlands, United States).

In the United States 24 states and the District of Columbia have legalised marijuana for medical purposes – a process that has been under way since it started in California in 1996. Of these states some – including Washington, Colorado, Oregon and DC – have given recreational use legal approval.

This has impacted the economy to the extent that sales of legal marijuana increased from $1.5bn in 2013 to $2.7bn in 2014. (These figures don’t take account of the cost savings achieved when catching, prosecuting and incarcerating offenders is no longer an issue.)

The economic future for legalising cannabis looks even more impressive: if every US state decriminalised the drug by 2020, it is estimated the market could increase to $35bn.

The Netherlands is an example of the effects of relaxing the law: research has shown hardly any increase in the use of cannabis after the laws fell away. However, a study in Alaska indicated that 12- to 17-year-olds were using the drug significantly more than the national average. As a result, the state re-introduced laws controlling its use.

In the UK attitudes have shifted away from legalisation and in 2009 the law was adjusted to classify marijuana as a Class B rather than the less harmful Class C drug.

The economics of the criminalisation and non-criminalisation could also be included in the debate – it costs vast amounts of money to police and prosecute drug offenders.


Important court cases

Two court cases have recently put the legalisation of marijuana under the spotlight:

  • Prince v President – the plaintiff quoted the South African Constitution in promoting the human rights of a specific religious group (Rastafarians) to use cannabis during worship. The Attorney General opposed this, highlighting the disadvantages of drug usage. The Constitutional Court decided in favour of the state.
  • Stobbs and Clarke, also known as the ‘Dagga Couple’. This case has also reached the Constitutional Court and similar arguments have been presented as in Prince v President, particularly the human rights of users. This case is labelled as the ‘first-ever legal challenge for the re-legalisation of cannabis in South Africa’ – perhaps a sign of things to come.

These cases have caught the attention of the public and highlight the need for further legal and scientific research as well as an informed debate at all levels of society.

Look out for part 2 where we’ll discuss the pros and cons of legalising marijuana.

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