Green twilight zone: Members of several organisations, NGOs and grower clubs protest (above) as part of the Cannabis Mass Action gatherings at the Union Building in Pretoria in 2022 before the conditional decriminalisation of marijuana in the country.
Photos: Alet Pretorius/Getty Images
I was a co-litigant in Prince, Acton, Rubin and others vs the Minister of Justice and Others that led to the constitutional court judgment in 2018 that decriminalised the private use and cultivation of cannabis by adults and which allowed adults to carry cannabis on their person in public places.
I also participated in the public process of drafting the Cannabis for Private Purposes Bill, which is now before the president for signing into law.
The process was characterised by the parliamentary portfolio committee’s refusal to heed public concerns, discuss certain issues and failure to respect the judgment. At one stage, two versions of the bill were circulated for comment and without notifying registered interested and affected parties of the comment period. Public comment was then terminated without any consensus from the public, possibly to fast track the signing of the bill before the elections.
The proposed law should not be enacted by the president because its fundamental presumptions violate the spirit and letter of the constitutional court judgment. It enables the destruction of the concept of privacy as well as personal, cultural and constitutional rights. I and many others have written to the president explaining the problems with the bill, and warning that it is in contempt of the judgment.
The bill does not define or recognise the concept of privacy and it does not mention or respect the right of an adult to privately cultivate cannabis for private purposes.
In Section 4, Offences and Penalties, the Bill reads:
- “4(4) Any person who is in possession of cannabis at any place, either in a private or public place, in an amount which exceeds the maximum amount prescribed for private purpose, is guilty of an offence and is liable on conviction to a fine or imprisonment for a period not exceeding five years, or to both such a fine and imprisonment.”
- “4(5) Any person who cultivates cannabis plants which exceed the maximum number of plants prescribed for private purpose, is guilty of an offence and is liable on conviction to a fine or imprisonment for a period not exceeding five years or to both such fine and imprisonment.
The bill presumes the justice minister and the state have a right to dictate the private decisions and activities of citizens with regard to their private cannabis use, to monitor numbers of plants and to prosecute non-compliance. The minister may in the future by means of regulations (which are not part of a public participation process) publish limits to the numbers of plants and cannabis that may be privately possessed, with excess amounts being punishable.
This will lead to police invasions of private spaces without evidence of dealing to count plants, and to prosecute people with excess plants even though no harm is caused to others.
The private use of cannabis rests in the fundamental freedom to privately assess one’s personal cannabis needs and then to plant accordingly, and to use the cannabis in a private space without interference by the state.
The constitutional court left the right to decide on one’s cannabis needs to the discretion of the private adult; the judgment did not grant the minister any mandate to dictate to adults how much cannabis they may need, cultivate, use or possess.
The bill also amends the Road Traffic Act to call tetrahydrocannabinol a “narcotic drug” and to specify arbitrary and unsubstantiated blood limits for THC testing at roadblocks. In the 100 years of prohibition, there have been no official tests for THC at roadblocks. In the drafting of the bill, the state produced not a single page of science showing that cannabis use leads to any significant risk on the roads, and the portfolio committee refused to discuss this with the public.
My inner cannabinoid content is part of my section 10 right to human dignity, my section 14 right to privacy, my section 12 right to “security in and control of my body” and the traffic Act is fully able to prosecute bad driving resulting from any cause. Our cannabis rights were granted to us in terms of privacy, but the bill destroys all rights to privacy, even to the extent of medical sampling to determine blood THC levels. A test for THC is only reasonable if I have driven negligently or caused an accident.
After the 2018 judgment, I privately determined my cannabis needs to be:
- 500g a day of cannabis seed for nutrition, (182.5kg/year);
- 1kg a day of seed to feed my poultry, which provide me with eggs and meat (365 kg/year);
- 200g a week of dried flower for personal recreational use (10.4kg/year);
- 200g a week of dried flower to give to others without remuneration (10.4kg/year);
- 12-20kg of dried flowers to make 120ml a year of full extract cannabis oil for my medical needs;
- 80kg a day of stalks and leaves to feed my livestock, which provide me with meat, and 80kg a day to bale and stockpile fodder for drought and off-season supply (58 400kg/year)
I also have a right to the private possession of any trichome by-product that may result from the above cultivation.
In the above uses, cannabis upholds my section 27(a) right to access to medical care, my section 24(b) right to access to food, and my section 24(b)(3) right to “secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development”.
The judgment did not limit the term “private adult consumption” to only the recreational or narcotic use of cannabis, and the above quantities are not in conflict with the judgment, and require no permission from the state. I therefore expect that if the state has no evidence of a citizen dealing for monetary gain, there is zero right to invade their private space, or decide that a crop is excessive regarding arbitrary limits, or even to talk to the grower about the crop, for then the state violates one’s privacy
The state may only limit these claimed cannabis rights in terms of section 36 Limitation of Rights in the Bill of Rights, and I know that the state cannot justify any limitation of the cannabis rights I have expressed above.
I have informed the president and the office of the chief justice that, for the reasons given above, I do not contract with the Cannabis for Private Purposes Bill, I do not consent to its application against me, and the bill must be scrapped. The president must refer the matter back to any parliamentary portfolio committee other than the justice committee, which has taken six years to dish up this insult to the judgment, or refer the drafting of the Bill to the original plaintiffs in the constitutional court case to present a bill for signing.
If any citizen wants to send a letter urging the president to not sign the bill, please Whatsapp 0846233389 with your name, town, province, and email address.
Jeremy Acton founded the Dagga Party of South Africa in 2009. He, together with Garreth Prince, Jonathan Rubin and others, won the right to the private cultivation and use of cannabis in 2018.