The Western Cape High Court handed down its judgment (Prince v Minister of Justice and Constitutional Development and Others; (4153/2012) [2017] ZAWCHC 30 (31 March 2017) in respect of the legality of the use of cannabis in the privacy of your own home. Ever since, there has been a lot of confusion regarding what your rights are.

Can government legitimately dictate what people eat, drink or smoke in their own homes?

The applicants in the matter, Gareth Prince and Jeremy Acton, approached court and asked that the court declare the provisions of sections 4 (b) and 5 (b) read with part 3 of Schedule 2 to the Drugs and Drug Trafficking Act 140 of 1992 (DDTA) and section 22 A (10) of the Medicines and Related Substances Control Act 101 of 1965 (the Medicines Act) unconstitutional in so far as it prohibits the use and enjoyment of cannabis in a private setting.

The essence of the question before court was to what extent and in what way government may dictate, regulate, or proscribe conduct to be harmful; as well as what the threshold of harm must be in order for government to intervene? Can government legitimately dictate what people eat, drink or smoke in their own homes or in properly designated areas?

State defence positioned cannabis as harmful and a public health priority

The state, in opposition to the case, argued that cannabis use is dangerous and harmful. They presented evidence which suggested that cannabis use has harmful effects, most notably on the brain and body. It was argued that it is a hallucinogen and causes a state of extreme relaxation or hyper activeness. It is also, inter alia, harmful to use cannabis when pregnant.

As a result of all of the dangerous properties of cannabis, the state argued that the prevention of cannabis use is a necessity and public health priority.

Applicants successfully argued that cannabis does not cause undue harm or dependence

The applicants, on the other hand, successfully argued that the use of cannabis does not cause undue harm or dependence to the extent that it justifies prohibiting and criminalising the use thereof in a private setting.

Court declared current legislation unconstitutional

The court held that the current legislative regime is unconstitutional whilst making it clear that the court does not understate the importance of curbing drug abuse. Accordingly, the judgment only went as far as stating what people may or may not do in the privacy of their own homes.

So does that mean that you have the right to smoke cannabis at home?

The answer is, not yet.

In terms of section 167(5) of the Constitution, any order of constitutional invalidity must be confirmed by the Constitutional Court. This has not happened yet. Accordingly, the order is suspended pending confirmation by the highest court in South Africa.

Judgment affects cannabis related charges

However, the judgment did devise an interim measure to deal with cannabis related charges. The judgment held that all prosecutions which fall within the legal provisions which were declared unconstitutional should be stayed.

The practical effect of this is that if you get caught with cannabis, you will still be arrested and probably spend a night in jail. You will then appear in court after which the matter will be provisionally withdrawn.

You are best advised to stay away from cannabis… at least for now!

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