What did the court say?

What you need to know about the use of cannabis and the right to privacy

Actual case: Minister of Justice and Constitutional Development and Others v Prince (Clarke and Others Intervening); National Director of Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others v Acton (CCT108/17) (2018) ZACC 30

What the Court said:

  • The Constitutional Court had to decide on whether certain sections in legislation relating to the criminalisation of the use of cannabis are invalid and unconstitutional.
  • Various factors were taken into account, for example, that other harmful substances, such as alcohol and tobacco, were legally allowed to be used.
  • The Constitutional Court finally held that the sections in legislation criminalising the use of cannabis infringes a person’s right to privacy (section 14 of the Constitution) for not allowing, among other things, the personal use of cannabis by an adult in private.
  • The Constitutional Court held that limiting a person’s right to privacy in this regard was not fair or reasonable and that the criminalisation of the personal and private use of Cannabis was unconstitutional.
  • The Constitutional Court suspended the invalidity for 24 months in order for the legislation to be amended accordingly, but made an interim order while waiting for the necessary amendments.

The consequences of the Court’s decision:

  • It is important to take note of the following impact the decision will have in the meantime:
    • Cannabis may be used by an adult for personal consumption in private. This means that an adult may also be in possession of cannabis in private, provided that it is intended to be used for personal consumption.
    • An adult is not allowed to use or be in possession of cannabis in private other than for personal consumption, for example, a person cannot hold it for his/her friend.
    • The use of cannabis (such as smoking) in public or in the presence of children or non-consenting adults is not allowed.
    • It will no longer be a criminal offence for an adult to cultivate (grow) cannabis in a private place for his/her personal consumption in private.
  • The Constitutional Court further acknowledged that it might be difficult to establish whether or not a person is in possession of cannabis for personal consumption or not. It was held that the amount of cannabis found in a person’s possession should be an important factor to consider in this regard and that bigger amounts of cannabis might lead to the conclusion that a person is not going to use it for private consumption.
  • In respect of purchasing and dealing, the Constitutional Court made it clear that dealing in cannabis is still a criminal offence.
  • In response to the Constitutional Court’s directive, the Cannabis for Private Purposes Act 07 of 2024 (“Cannabis Act”) was signed into law by President Cyril Ramaphosa on 28 May 2024.
  • The Cannabis Act will entirely remove cannabis from the Drugs and Drug Trafficking Act and will also aim to, amongst other things:
  • respect the right to privacy of an adult person to use or possess cannabis;
  • regulate the use or possession of cannabis by an adult person;
  • provide for an alternative manner to address the issue of the prohibited use, possession of, or dealing in, cannabis by children, with due regard to the best interest of the child;
  • prohibit the dealing in cannabis;
  • provide for the expungement of criminal records of persons convicted of possession or use of cannabis or dealing in cannabis on the basis of a presumption; and
  • amend provisions of certain laws.
  • Importantly, the Cannabis Act has not yet come into effect. This means that the Act has not yet legally binding or enforceable, but it gives everyone an idea of how the law is developing.

Conclusion:

  • In light of the above, it is important to understand that even though it is not a criminal offence to use cannabis in private and for personal consumption, there are still some limitations to the use of cannabis.
  • This case and the Cannabis Act indicate that the law is constantly developing to avoid infringements of a person’s human rights.
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