In a ruling sending shockwaves across the world, South Africa’s highest court has removed criminal penalties for the possession and cultivation of cannabis for personal use, effective immediately.
The country’s Constitutional Court released a ruling on Sept. 18 that upheld a previous ruling by Cape Town’s High Court, which declared that legislation criminalizing the use, possession, purchase and cultivation of cannabis was unconstitutional.
The case arguing for legal cannabis in South Africa all started in the High Court, when three cases challenging the constitutionality of South Africa’s marijuana laws were consolidated into one. All three cases challenged certain sections of the Drugs and Drug Trafficking Act 140 of 1992 and the Medicines and Related Substances Control Act 101 of 1965 as constitutionally invalid. Four specific sections of the laws were challenged originally and the High Court found them to be inconsistent with the right to privacy guaranteed by section 14 of South Africa’s Constitution. The court emphasized that unconstitutionality was only to the extent where those specific sections prohibit the use, possession, purchase or cultivation of cannabis by an adult person in a private dwelling for his or her consumption. But the expectation of privacy extends outside the home.
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When the High Court originally made its ruling in late March 2017, it suspended its own decision for 24 months. They felt the court handing down a straight legalization ruling was a bit overbearing on the separation of powers dictated in the constitution, so the delay was meant to give lawmakers in South Africa time to remedy the problem. Since that initial ruling, those arrested with cannabis had been able to argue in court it was for personal use and then judges would dictate whether it was an applicable defense for the charge.
In South Africa, selling marijuana is still very much against the law. The court noted that law enforcement would continue to consider circumstances like the quantity in an individual’s possession when determining whether or not the possession was for personal use.
“If the police officer, on reasonable grounds, suspects that the person concerned is in possession of that cannabis for dealing and not for personal consumption, the officer may arrest the person,” read the court’s announcement on the ruling.
Jeremy David Acton is the leader of South Africa’s Dagga Political Party. He spoke with the South African Broadcasting Company on the day’s big win.
“It’s also a big victory for every person out there who is a member of our culture,” Acton told SABC. “Perhaps people will be able to work around and within the framework of privacy to exchange [cannabis] , and to gift it in compassion, and to gather in a place where it’s still a private event,” Acton told SABC.
Acton believes the ruling also allows for the collective private use of cannabis, as the court ruled the protections of users privacy extended outside the home. However, smoking in public is against the law. Acton says there will likely need to be some licensing process to determine which private spaces can legally host cannabis consumers.
“But ultimately, we would like to have equality with cigarettes and alcohol users in the way we may use and gather in spaces,” Acton said.
Acton said he wants to be able to gather alongside those people enjoying tobacco and beer so they can all root on the nation’s rugby team together. He went on to call South African cannabis users a culture in themselves, a multicultural group that represented the various racial backgrounds that exist in the country.
When asked if he was worried about the limitations the country’s legislature may impose on the definition of personal use in their forthcoming legislation, Acton replied, “Private use also includes medical use and not just so-called narcotic use. And when you want to make full extract oils for cancer to consume less material for the same medical benefit you need to actually have a large number of plants. And you need to carry on your person a large number of parcels just to make a small amount of cannabis oil.”
Will those quantities be an issue? Acton believes it will end up in court due to law enforcement claiming medical amounts to be excessive.
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