On 18 September 2018, the highest court in the country ruled that the personal use of cannabis is not a criminal offence. The unanimous decision of the court ruled that the ban on private possession and consumption, and cultivation of the plant for own use, is unconstitutional.

The background to the “dagga trials”

In March 2017, Western Cape High Court Judge Davis ruled (Prince v Minister of Justice and Constitutional Development and Others; (4153/2012) [2017] ZAWCHC 30 (31 March 2017) that possession and cultivation of cannabis for private use, and use thereof in a private setting was allowed and in the interim period, prosecutions for personal cannabis possession as described in its judgment should be stayed, pending the confirmation thereof by the Constitutional Court.

The Constitutional Court ruling on cannabis

On 18 September 2018, the Constitutional Court confirmed the High Court judgment and stated that the ban on the use of cannabis at home was against the constitutional right to privacy.

The ruling stated the following: “The criminal prohibition of possession, use or cultivation of cannabis by an adult person for personal consumption in private is an infringement of the right to privacy of an adult person and constitutionally invalid.”

Deputy Chief Justice Raymond Zondo said the following: “The right to privacy is not confined to a home or private dwelling. It will not be a criminal offence for an adult person to use or be in possession of cannabis in a private space.”

Zondo reiterated that cannabis may not be consumed in public, nor distributed or sold, or used by minors.

Currently pending cannabis charges

It is important to note that cannabis related charges, currently pending, that fall within the applicable legal provisions would remain pended, subject to an enquiry as to the circumstances of each case such as whether it is related to personal use or intent to distribute.

What are allowable cannabis quantities for personal use?

The amount that an adult may cultivate and possess should be justifiable for personal use, and possession of large quantities will still lead to arrests.

For now we will have to wait for the legislature to answer interesting questions such as allowable quantities and the sale of cannabis for personal use. Parliament has two years to amend the relevant laws.

Abrahams & Gross provides expert legal advice relating to these current changes in law; please don’t hesitate to contact one of our attorneys with any queries. We aim to resolve matters in the most expeditious manner possible: ‘Justice delayed is justice denied.’ We have considerable experience within Criminal Law, Litigation and related legal matters.

For Criminal Law expertise

Juan Smuts                  juan@abgross.co.za

Henno Bothma           hennob@abgross.co.za

Wesley Scheepers      wesleys@abgross.co.za



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