Getting high in private: Will the ConCourt be for or against?

The battle over whether the private use of cannabis is a crime is expected to come to an end on Tuesday when the Constitutional Court hands down judgment.

The decriminalisation of cannabis has been a hot topic since the early 2000s with those in support of decriminalising arguing that the criminalisation of dagga use and possession is a violation of the right to equality, dignity and freedom of religion.

In March 2017 the Western Cape high court ordered that sections of both the Drugs and Drugs Trafficking Act and the Medicine and Related Substances Control Act, which criminalised the use and possession of cannabis, were inconsistent with the Constitution and therefore invalid.

Section 4(b) and 5(b) of the Drugs Act under the chapter of illegal acts states that: No person shall use or have in his possession, or deal in, “any dangerous dependence-producing substance or any undesirable dependence-producing substance.”

Sections 22A(9)(a)(i) of the Medicines Act declares that no person is permitted to use, cultivate, keep or sell any schedule seven substance.

Tetrahydrocannabinol, one of at least 113 cannabinoids identified in cannabis, is listed as a schedule seven substance.

The high court found that the two Acts limit cannabis users’ right to privacy and that if a person purchases, possesses or cultivates the drug in the privacy of their home and for his/or her “sole personal consumption”, then the prohibiting stipulations in the Acts are unjustifiable.

It ordered Parliament to change these sections in the two Acts within 24 months of handing down of the judgment. The high court also made an order allowing any person charged under the relevant provision of the Drugs Act or the Medicines Act, to use the decision as a defence.

In November 2017, the Constitutional Court heard an appeal application by the National Prosecuting Authority and number of ministers, including the minister of justice and constitutional development, the minister of police, the minister of health, the minister of trade and industry, the minister of social development and the minister of international relations and cooperation.

They sought leave to appeal the decision of the high court, which ordered that “the relevant provisions are only unconstitutional to the extent that they trench upon the private use and consumption of a quantity of cannabis for personal purposes, which the legislative considers does not constitute undue harm.”

They argued that the high court erred in deciding the case before it on the basis of privacy as privacy had not been properly pleaded before it.

They also argued that there is objective proof of the harmful effects of cannabis, that cannabis is a “gateway” drug and that this drug is predominantly used by vulnerable members of society and places them at greater risk of dependency.

The Constitutional Court also heard, at the same time, an application for the confirmation of the high court’s order.

The applicants argued that the provisions in the Acts are excessive in their blanket ban on cannabis and “intrude unjustifiably into their private sphere”.

They also argued that there should be less drastic measures for government to keep dependency-inducing drugs away from the public via new legislation.

These two applications are what the court will rule on on Tuesday. 

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