On Tuesday (18 September) the Constitutional Court upheld that it should be legal for citizens to cultivate and consume marijuana for personal use in private.
As part of the judgement deputy chief justice Raymond Zondo took the view that it should be left to Parliament to decide on the quantity of cannabis that an adult person may use, possess or cultivate for it to amount to ‘personal use’.
He was of the view that the Court would infringe the doctrine of separation of powers if it determined the amount itself.
As to how a police officer would know whether the amount of cannabis in the possession of an adult is or is not for that adult person’s personal consumption, the Court held that a police officer would have to consider all the circumstances – including the quantity of cannabis found in an adult person’s possession.
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, but a court will ultimately decide whether the person was in possession of cannabis with the intent to deal, or for their own personal consumption.
Judge Zondo said there were will be cases where it is obvious that the cannabis being held is intended for personal use, and cases where it’s obvious that it is not. For the uncertain situations, police officers need to apply their minds.
According to Zondo, the matter should be treated the same as a case of negligent driving or where someone is suspected of holding stolen goods – where the police officer’s reasonable view of the situation needs to balanced with the accused’s account.
“If a police officer finds a person in possession of cannabis and he or she thinks it is not for personal consumption, he or she will ask the person such questions as may be necessary to satisfy himself or herself whether the cannabis he or she is in possession of is for personal consumption,” Zondo said.
“If, having heard what the person has to say, the police officer thinks that the explanation is not satisfactory, he or she may arrest the person. Ultimately, it will be the court that will decide whether the person possessed the cannabis for personal consumption.”
For the cultivation of cannabis, he says the exact same rules should apply.
Zondo said that this reading-in will apply until such time as Parliament fixes the Constitutional defect in the case. If it does not do so, this will “continue to be part of the legislation”.
Parliament now has 24 months to change the relevant sections of the Medicines Controls Act to bring it in line with the ruling. In the interim, adults can smoke dagga in private.
The full ruling is embedded below: