By: Sylvia Maila, LindsayKeller associateOn 18 September 2018, the Constitutional Court of South Africa confirmed a ruling by the Western Cape High Court that specific laws criminalising the private use, possession, purchase and cultivation of cannabis by adults are unconstitutional. The Constitutional Court held that certain statutory provisions are unconstitutional because they infringe on the right to privacy entrenched in section 14 of the Constitution. This article examines how the Court arrived at this groundbreaking conclusion and how it affects the lives of ordinary citizens.

Cannabis and the right to privacy as dealt with by the High Court

In March 2017, the High Court held that sections 4(b) and 5(b) of the Drugs Act read with part 3 of the act’s schedule 2, and sections 22A(9)(a)(i) and 22A(10) of the Medicines Act read with its schedule 7 (statutory provisions), are inconsistent with the right to privacy guaranteed by section 14 of the Constitution. In essence, these provisions prohibit the use or possession of any dependence-producing substance, unless exceptions listed in the statutory provisions apply. An example of such an exception is that one must be a patient who has acquired or bought such a substance from a medical practitioner. The High Court found that the statutory provisions unjustifiably limited the right to privacy entrenched in the Constitution to the extent that they prohibit the use, possession, purchase and cultivation of cannabis in a private dwelling by an adult for his or her personal consumption. The Court therefore ruled that these provisions were constitutionally invalid.

Is the limitation of the right to privacy justifiable?

The issue before the Constitutional Court was whether the disputed statutory provisions limit the right to privacy and, if they do, whether that limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. In a unanimous judgment written by Zondo ACJ, the Constitutional Court started off by defining the right to privacy in terms of section 14 of the Constitution as the “right to be left alone.” Having confirmed that the disputed provisions limited the right to privacy, the Court sought to determine whether the limitation was reasonable and justifiable. In terms of section 36 of the Constitution, the following factors must be considered when determining whether the limitation of any right entrenched in the Bill of Rights is reasonable and justifiable:

1. The nature of the right
2. The importance of the purpose of the limitation
3. The nature and extent of the limitation
4. The relation between the limitation and its purpose
5. Less restrictive means.

The Court acknowledged that the disputed provisions serve an important governmental purpose in the global war against drugs. However, it indicated that criminalising the use and possession of cannabis by an adult person in private is invasive. In assessing the relation between the limitation and its purpose and less restrictive means, the Court relied on affidavits from medical experts. These affidavits highlighted, among other issues, a host of harmful effects of cannabis use by older people and pregnant women. These affidavits also went as far as to state that, although tobacco, alcohol and prescription drugs also have harmful side effects, research has shown that the effects of these substances are far less than those of cannabis on the user. The Constitutional Court questioned the claims in these affidavits as they contradicted a report by the World Health Organization published in 2016 titled The health and social consequences of non-medical cannabis use. This report revealed that people who need treatment for substance dependence after using cannabis experience fewer severe health and social consequences than those who are dependent on alcohol or opioids. Such social consequences include domestic violence and road accident injuries and fatalities. According to the report, 16% of countries included in a 2015 survey reported cannabis use as the main reason for people seeking substance abuse treatment. This places cannabis second only to alcohol as a reason for treatment. In light of this report and many other international judgments, the Court held that “there is no cogent evidence supporting the notion that the use of cannabis causes criminal behavior or leads its users to behaving violently.” In other words, the Court found no objective proof of a definite link between an adult’s personal use, consumption, possession and cultivation of cannabis and any resultant illegal activity. On this basis, the Constitutional Court confirmed the order of constitutional invalidity as handed down by the High Court.Aside from the constitutional test in terms of sections 14 and 36 that was applied in coming to this judgment, the Constitutional Court was also influenced by the fact that a number of democratic states have legalised the possession of cannabis in small amounts for personal use. These countries include Austria (decriminalisation took place in 2016), Capital Territory in Australia (1992), Canada (2018), Switzerland (2013) and Spain (2015).

What does this judgment mean for the public?

The media summary of this judgment highlighted the Constitutional Court’s view that Parliament should determine the amount of cannabis an adult person may use, possess or cultivate in order for it to amount to “personal use.” Zondo ACJ took the view that the Constitutional Court would infringe on the doctrine of separation of powers if it determined the amount itself. Therefore, if a police officer finds an adult in possession of cannabis – in public or in their private residence – it is up to that officer to consider all the relevant circumstances, including the quantity of cannabis, in determining whether it is for that individual’s personal consumption. If the officer has reasonable grounds to suspect that the person possesses cannabis for dealing rather than personal use, the officer may arrest them. However, it will then fall to the Criminal Court to decide whether the person in possession of cannabis intended dealing it or consuming it themselves. This judgment was met with diverse responses by social lobby groups and members of the public. In my opinion, the decision caused an uproar because it debunked the myth that adults who choose to smoke cannabis in their private spaces are threats to society. The idea that using cannabis causes someone to engage in criminal activities is factually inaccurate and cannot pass constitutional muster. The judgment was therefore a victory for many people who use or cultivate cannabis for recreational and religious purposes.