Cannabis has been stigmatised from time immemorial. This week’s Constitutional Court judgment on cannabis probably made a lot of people happy because, across all sectors of society, people smoke weed and have, until now, been doing so in dark corners, fearful of being arrested.
Deputy Chief Justice Raymond Zondo delivered a unanimous judgment that approves the individual’s right to possess and grow a reasonable amount of cannabis for their own use in the privacy of their homes.
This opens up a much wider conversation, including that about the commercialisation of the plant, what is meant by private, and the quantity a person can possess.
Companies and organisations that run random drug tests on their employees must now ask themselves why they tested for cannabis. Was it because the law said so, or because they believe the herb affects a person’s ability to do their work?
The Zondo judgment seems to break ranks with the very belief that cannabis is a drug. Is it physically addictive? Does it rank alongside other psychologically addictive activities such as sex, shopping and driving at high speeds?
Tests can identify the presence of tetrahydrocannabinol (THC), the principal psychoactive constituent of cannabis,in urine up to 12 weeks after consumption.But this certainly does not mean that person is now high.
This calls for proper regulation and public teaching of responsible weed smoking for those who choose to partake.Some may view smoking in their cars as part of “private use”, but smoking cannabis affects the ability to drive safely. Legislation about smoking the herb and driving is not yet clear, and enforcing any limits will be difficult because tests are expensive and because THC stays in the body long after cannabis has been consumed.
The judgment was clear in how it expanded the view of private use to not being confined only to one’s private dwelling. It remains to be seen whether there will be consensus on what “private use” is when one has stepped out of one’s home.
Zondo read out: “Whereas the high court had limited its order of invalidity to the use or cultivation or possession of cannabis at a home or in a private dwelling, this court has dispensed with that limitation. It holds that the right to privacy is not confined to a home or private dwelling. It holds that the right goes beyond the boundaries of a home.
“Nevertheless, this court emphasises that only the use or possession of cannabis by an adult in private, for the personal consumption of that adult person in private, is the focus of this judgment.
“In the case of cultivation of cannabis, the focus is on the cultivation of cannabis by an adult in a private place for that adult’s personal consumption in private. Accordingly, no use or possession of cannabis by a child or by an adult in public is decriminalised by this judgment,” said Zondo.
Parliament has a much bigger task than to merely tinker with the Drugs and Drug Trafficking Act 140 of 1992 and the Medicines and Related Substances Control Act 101 of 1965. Parliament must provide the clarity that is not in the judgment. Parliament must also call on South Africans to help it imagine a future cannabis industry in the country.
This industry has existed illegally for years. Many of us who hail from emaMpondweni in the Eastern Cape know cannabis farming has generated income for many families, making it possible for their children to attend boarding schools far from our under-resourced rural villages.
These people have been terrorised and brutalised by the police. The cannabis fields of people near Port St Johns have been subjected to numerous attacks, including being sprayed with herbicides. At times these herbicides have affected water sources, creating a hazard for livestock and people.
Now, there is an opportunity for Parliament to provide dignity and economic freedom to those cannabis growers. Yes, the large-scale farming and retailing of cannabis was not decriminalised by the Constitutional Court, in part because this matter was not the core issue before the court. But Parliament can now cultivate a rural development strategy based on the industrialisation of cannabis.
This industrialisation must be connected to research on the use of cannabis for medicinal purposes. The Eastern Cape is well positioned for this, because Walter Sisulu University has a medical school at Mthatha that can be used for such research.
That dark scar of the emaMpondweni and other rural communities across the country can be transformed into an industrial hub that develops cannabis products, with a mandate focusing on rural farmers as suppliers to industrial and research entities.
Parliament can do this before the cannabis farming space is exploited by cartels and private corporates.
Coca-Cola is already looking at entering the market through using non-psychoactive CBD (cannabidiol) in its wellness beverages. It would be a pity if this economic opportunity is not realised in the most remote and economically stressed localities.
Legislation needs to be forward-thinking on this matter, and not just be about tinkering with the two Acts.It is now time to create a rural-based enterprise that will generate much income, especially if cannabis is scaled up for medicinal purposes.
Government can unlock the economic potential of rural economies while regulating research, retail and consumption, as well as educating the public on the progressive use and responsible conduct of smoking or consuming cannabis.
Lukhona Mnguni is a PhD intern researcher in the Maurice Webb Race Relations Unit at the University of KwaZulu-Natal