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Cultivation, Possession and use of Cannabis by an adult in private and for personal use should be Decriminalized

Cultivation, Possession and use of Cannabis by an adult in private and for personal use should be Decriminalized

Minister of Justice and Constitutional Development and Others v Prince;

National Director of Public Prosecutions and Others v Rubin;

National Director of Public Prosecutions and Others v Acton and Others

Constitutional Court of South Africa

Case CCT 108/17

Zondo ACJ, Cameron, Froneman, Madlanga, Mhlantla, Theron, Jafta J, Kathree-Setiloane, Kollapen, and Zondi AJ

September 18, 2018

Reported by Linda Awuor & Wanjiru Njihia

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Constitutional Law-Bill of rights-privacy-right to privacy-limitation of right to privacy- whether the prohibition by the impugned provisions of the mere possession, use or cultivation of cannabis by an adult in private for his or her personal consumption in private was inconsistent with the right to privacy provided for in section 14 of the Constitution and, therefore, invalid- sections 4(b) and 5(b) of the Drugs Act and sections 22A(9)(a)(i) and 22A (10) of the Medicines Act.

Constitutional Law-Bill of Rights-limitation of rights-circumstances under which rights may be limited- Whether the limitation was reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom taking into account the factors listed in section 36(1) of the Constitution-constitution of the Republic of South Africa, section36.

Statutes-interpretation of statutory provisionssection 1 of Drugs and Drug Trafficking Act-meaning of “deal in” as provided under section 1 of Drugs and Drug Trafficking Act-Drug and Drug Trafficking Act, section 1

Brief facts:

Confirmatory proceedings were brought before the Constitutional Court which followed upon the lodgment by the Registrar of the Western Cape Division of the High Court of South Africa with the Registrar of the Constitutional Court of the order of constitutional invalidity made by the High Court in the instant matter. The order was in relation to sections 4(b) and 5(b) of the Drugs and Drug Trafficking Act No.140 of 1992 (Drugs Act) read with Part III of Schedule 2 to that Act and sections 22A(9)(a)(i) and 22A (10) of the Medicines and Related Substances Control Act No.101 of 1965 (Medicines Act) read with Schedule 7 of GN R509 of 2003 published in terms of section 22A (2) of the Medicines Act. The said orders criminalized private use of marijuana by adults.

The High Court suspended the order of invalidity of the said provisions for a period of 24 months from March 31 2017. It said that to allow Parliament to correct the constitutional defects in the Drugs Act and Medicines Act as set out in the judgment.

The order of invalidity was made in favour of various persons to whom the High Court referred to as applicants. Some proceedings under different case numbers had been instituted by different persons in the High Court.

The Respondents / Defendants in the High Court proceedings brought an application for leave to appeal against the decision of the High Court. They also opposed confirmation of the High Court’s order of constitutional invalidity.

Issues:

  1. Whether the prohibition by sections 4(b) and 5(b) of the Drugs and Drug Trafficking Act No.140 of 1992 of the mere possession, use or cultivation of cannabis by an adult in private for his or her personal consumption in private was inconsistent with the right to privacy provided for in section 14 of the Constitution and, therefore, invalid.
  2. What was the meaning of the phrase “deal in” as provided under section 1 of Drugs and Drug Trafficking Act No.140 of 1992?
  3. Whether the limitation of the right to privacy as provided for under section 14 of the Constitution was reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom taking into account the factors listed in section 36(1) of the Constitution.
  4. Whether the order of invalidity of the impugned provisions should operate with retrospective effect.
  5. Whether the Court should grant interim relief that would operate during the period of the suspension of the declaration of invalidity.
  6. What was the effect of reading-in adopted by the Constitutional Court as an interim relief?

Relevant provisions of law

Constitution of the Republic of South Africa

Section 14- Privacy

Everyone has the right to privacy which includes the right not to have—

(a) their person or home searched; (b) their property searched; (c) their possessions seized; or (d) the privacy of their communications infringed.

Section 36-Limitation of Rights The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—

a) the nature of the right;

b) the importance of the purpose of the limitation;

c) the nature and extent of the limitation;

d) the relation between the limitation and its purpose; and

e) less restrictive means to achieve the purpose.

f) Except as provided in subsection (I) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

Drugs and Drug Trafficking Act

Section 4(b) – Use and possession of drugs

No person shall use or have in his possession—. . .

(b) any dangerous dependence-producing substance or any undesirable dependence-producing substance,

unless—

(i) he is a patient who has acquired or bought any such substance—

(aa) from a medical practitioner, dentist or practitioner acting in his professional capacity and in accordance with the requirements of the Medicines Act or any regulation made thereunder; or

(bb) from a pharmacist in terms of an oral instruction or a prescription in writing of such medical practitioner, dentist or practitioner,

and uses that substance for medicinal purposes under the care or treatment of the said medical practitioner, dentist or practitioner;

(ii) he has acquired or bought any such substance for medicinal purposes—
(aa) from a medical practitioner, veterinarian, dentist or practitioner acting in his professional capacity and in accordance with the requirements of the Medicines Act or any regulation made thereunder
(bb) from a pharmacist in terms of an oral instruction or a prescription in writing of such medical practitioner, veterinarian, dentist or practitioner; or
(cc) from a veterinary assistant or veterinary nurse in terms of a prescription in writing of such veterinarian,

with the intent to administer that substance to a patient or animal under the care or treatment of the said medical practitioner, veterinarian, dentist or practitioner;

(iii) he is the Director-General: Welfare who has acquired or bought any such substance in accordance with the requirements of the Medicines Act or any regulation made thereunder;

(iv) he, she or it is a patient, medical practitioner, veterinarian, dentist, practitioner, nurse, midwife, nursing assistant, pharmacist, veterinary assistant, veterinary nurse, manufacturer of, or wholesale dealer in, pharmaceutical products, importer or exporter, or any other person contemplated in the Medicines Act or any regulation made thereunder, who or which has acquired, bought, imported, cultivated, collected or manufactured, or uses or is in possession of, or intends to administer, supply, sell, transmit or export any such substance in accordance with the requirements or conditions of the said Act or regulation, or any permit issued to him, her or it under the said Act or regulation;

(v) he is an employee of a pharmacist, manufacturer of, or wholesale dealer in, pharmaceutical products, importer or exporter who has acquired, bought, imported, cultivated, collected or manufactured, or uses or is in possession of, or intends to supply, sell, transmit or export any such substance in the course of his employment and in accordance with the requirements or conditions of the Medicines Act or any regulation made thereunder, or any permit issued to such pharmacist, manufacturer of, or wholesale dealer in, pharmaceutical products, importer or exporter under the said Act or regulation; or

(vi) he has otherwise come into possession of any such substance in a lawful manner.”

Section 5(b) - Dealing in drugs

No person shall deal in—

(b) any dangerous dependence-producing substance or any undesirable dependence producing substance, unless—

(i) he has acquired or bought any such substance for medicinal purposes—

(aa) from a medical practitioner, veterinarian, dentist or practitioner acting in his professional capacity and in accordance with the requirements of the Medicines Act or any regulation made thereunder;
(bb) from a pharmacist in terms of an oral instruction or a prescription in writing of such medical practitioner, veterinarian, dentist or practitioner; or
(cc) from a veterinary assistant or veterinary nurse in terms of a prescription in writing of such veterinarian, and administers that substance to a patient or animal under the care or treatment of the said medical practitioner, veterinarian, dentist or practitioner;

(ii) he is the Director-General: Welfare who acquires, buys or sells any such substance in accordance with the requirements of the Medicines Act or any regulation made thereunder;

(iii) he, she or it is a medical practitioner, veterinarian, dentist, practitioner, nurse, midwife, nursing assistant, pharmacist, veterinary assistant, veterinary nurse, manufacturer of, or wholesale dealer in, pharmaceutical products, importer or exporter, or any other person contemplated in the Medicines Act or any regulation made thereunder, who or which prescribes, administers, acquires, buys, tranships, imports, cultivates, collects, manufactures, supplies, sells, transmits or exports any such substance in accordance with the requirements or conditions of the said Act or regulation, or  any permit issued to him, her or it under the said Act or regulation; or

(iv) he is an employee of a pharmacist, manufacturer of, or wholesale dealer in, pharmaceutical products, importer or exporter who acquires, buys, tranships, imports, cultivates, collects, manufactures, supplies, sells, transmits or exports any such substance in the course of his employment and in accordance with the requirements or conditions of the Medicines Act or any regulation made thereunder, or any permit issued to such pharmacist, manufacturer of, or wholesale dealer in, pharmaceutical products, importer or exporter under the said Act or regulation.

Section1- Definitions

deal in”-in relation to a drug, includes performing any act in connection with the transshipment, importation, cultivation, collection, manufacture, supply, prescription, administration, sale, transmission or exportation of the drug.

Medicines and Related Substances Control Act

Section 22A(9)(a)(i) – Control of medicines and Scheduled substances

“No person shall—

(i) acquire, use, possess, manufacture or supply any Schedule 7 or Schedule 8 substance, or manufacture any specified Schedule 5 or Schedule 6 substance unless he or she has been issued with a permit by the Director-General for such acquisition, use, possession, manufacture, or supply: Provided that the Director-General may, subject to such conditions as he or she may determine, acquire or authorise the use of any Schedule 7 or Schedule 8 substance in order to provide a medical practitioner, analyst, researcher or veterinarian therewith on the prescribed conditions for the treatment or prevention of a medical condition in a particular patient, or for the purposes of education, analysis or research.”

Section 22A (10)- Control of medicines and Scheduled substances

“Notwithstanding anything to the contrary contained in this section, no person shall sell or administer any Scheduled substance or medicine for [any purpose] other than medicinal purposes: Provided that the Minister may, subject to the conditions or requirements stated in such authority, authorise the administration outside anyhospital of any Scheduled substance or medicine for the satisfaction or relief of a habit or craving to the person referred to in such authority.”

Criminal Procedure Act

Section 40(1)(a) and (h) -Arrest by peace officer without warrant

(1) A peace officer may without warrant arrest any person—

(a) who commits or attempts to commit any offence in his presence;

(h) who is reasonably suspected of committing or of having committed an offence under any law governing the making, supply, possession or conveyance of intoxicating liquor or of dependence-producing drugs or the possession or disposal of arms or ammunition.

General Law Amendment Act

Section 36-Failure to give a satisfactory account of possession of goods

Any person who is found in possession of any goods, other than stock or produce as defined in section one of Stock Theft Act, 1959 (Act 57 of 1959), in regard to which there is reasonable suspicion that they have been stolen and is unable to give a satisfactory account of such possession, shall be guilty of an offence and liable on conviction to the penalties which may be imposed on a conviction of theft.” (emphasis added).

Sections 2 and 3 of the Stock Theft Act87 provides:

2. Failure to give satisfactory account of possession of stock or produce

Any person who is found in possession of stock or produce in regard to which there is reasonable suspicion that it has been stolen and is unable to give a satisfactory account of such possession shall be guilty of an offence.

3.Absence of reasonable cause for believing stock or produce properly acquired

(1) Any person who, in any manner, otherwise than at a public sale, acquires or receives into his or her possession from any other person stolen stock or stolen produce without having reasonable cause for believing, at the time of such acquisition or receipt, that such stock or produce is the property of the person from whom he or she acquires or receives it or that such person has been duly authorized by the owner thereof to deal with it or dispose of it shall be guilty of an offence.

(2) In the absence of evidence to the contrary which raises a reasonable doubt, proof of possession as contemplated in subsection (1) shall be sufficient evidence of the absence of reasonable cause.”

Held:

  1. The provisions declared inconsistent with the Constitution by the High Court were not all the provisions of sections 4(b) and 5(b) of the Drugs Act and sections 22A(9)(a)(i) and 22A (10) of the Medicines Act. The order of the High Court declared the provisions of those sections constitutionally invalid only to the extent that they prohibited the use of cannabis by an adult in private dwellings where the possession, purchase or cultivation of cannabis was for personal consumption by an adult.
  2. The order of the High Court declared constitutionally invalid not only the provisions of the sections referred to therein that prohibited the use or possession of cannabis in a private dwelling but also the purchase and cultivation of cannabis in a private dwelling or home. The High Court’s basis for declaring the provisions constitutionally invalid to the extent that it did, was that they were inconsistent with the right to privacy when an adult used or was in possession of, or, cultivated, cannabis in a private dwelling or at home for his or her consumption in private.
  3. Section 4(b) of Drugs and Drug Trafficking Act prohibited the use or possession of any dangerous dependence-producing substance or any undesirable dependence-producing substance unless one or more of the exceptions listed therein applied. Section 5(b) of the same Act prohibited dealing in any dangerous dependence–producing substance or any undesirable dependence-producing substance unless one or more of the exceptions listed in that provision applied.
  4. Paragraphs 1 and 3 of the order of the High Court included the prohibition of the cultivation of cannabis in a private dwelling by an adult for his or her personal consumption in private as one of the provisions that were inconsistent with the right to privacy entrenched in the Constitution and invalid. Indeed, paragraph 3 of the order of the High Court was to the effect that it would be a defence to a charge of cultivation of cannabis that the cultivation was in a private dwelling and was for the personal consumption of the adult accused person concerned.
  5. A reading of the judgment of the High Court did not reveal what statutory provision the High Court understood to prohibit the cultivation of cannabis in a private dwelling by an adult for his or her personal consumption in private. On the face of it, section 5(b) did not itself seem to prohibit that activity when it was carried out for the purpose just mentioned. However, it was only when one read the definition of the phrase “deal in” in section 1 of the Drugs Act that one realised that in relation to a drug the definition included performing any act in connection with cultivation.
  6. One of the effects of section 5(b) of Drugs and Drug Trafficking Act read with the definition of the phrase “deal in” was that the performance of any act in connection with the cultivation of cannabis in a private dwelling or in private by an adult for his or her personal consumption in private was prohibited. The High Court judgment had to be taken to have intended to declare that prohibition to be inconsistent with the right to privacy entrenched in the Constitution and, therefore, invalid.
  7. The conduct prohibited by section 22A (10) of Medicines and Related Substances Control Act was the sale or administration of any Scheduled substance or medicine for any purpose other than medicinal purposes. That was subject to the exceptions given in the provision. In its order the High Court did not include the sale or administration of cannabis. The order of the High Court did not declare invalid any provision prohibiting the sale or administration of cannabis. However, it did declare invalid provisions that related to purchase of cannabis that could be found in any of the sections referred to in the order.
  8. There could be no purchase without a sale. If the order of the High Court was not confirmed in so far as it related to provisions prohibiting the purchase of cannabis, there would be no need to deal with section 22A (10) in that judgment. That was because the sale or administration of cannabis – which were the activities prohibited by section 22A (2) of Medicines and Related Substances Control Act were not included in the order of the High Court.If the instant Court was satisfied that the statutory provisions were correctly declared invalid, it confirmed the order of invalidity made by the High Court. If, however, the Court concluded that the High Court erred in holding the impugned provisions inconsistent with the Constitution and in declaring them invalid, it did not confirm the order. Where the Court did not confirm an order of invalidity made by a High Court, the statutory provisions in question continued in operation.
  9. The right to privacy entitled an adult person to use, cultivate or possess cannabis in private for his or her personal consumption. Therefore, to the extent that the impugned provisions criminalised such cultivation, possession or use of cannabis, they limited the right to privacy. The High Court pointed out that the State did not plead that the impugned provisions did not limit the right to privacy. The High Court correctly concluded that the impugned provisions limited the right to privacy. It was the State that had to satisfy the Court that the limitation was reasonable and justifiable in an open and democratic society. The justification analysis required by section 36(1) of the General Law Amendment Act needed not be dealt with on the basis of a check list approach.
  10. The impugned provisions criminalised, among others, the cultivation of cannabis in private by an adult for his or her personal consumption in private. In Prince V Minister of Justice 2017(Prince II), the Court was split 5:4. In the minority judgment it was said that the medical evidence in that case showed that there was a level of consumption of cannabis which was not harmful but it was not known what that level was. The impugned provisions also criminalised possession of cannabis by an adult in private for his or her personal consumption. That was quite invasive.
  11. The High Court’s conclusion that the limitation was not reasonable and justifiable was based on, amongst others, the position taken by the South African Central Drug Authority as reflected in its position statement issued in 2016 in the South African Medical Journal. Two points made in that statement needed to be emphasised. The first was that the South African Central Drug Authority said that an assessment of available data in other countries indicated, inter alia, that, among alcohol, tobacco and cannabis, alcohol caused the most individual and social harm. The second point was that the immediate focus should be on decriminalisation.
  12. The High Court’s conclusion was also influenced by, among others, the fact that there were many democratic societies based on freedom, equality and human dignity that had either legalised or decriminalised possession of cannabis in small quantities for personal consumption. Those were reflected in an addendum to the judgment. The addendum had the name of the jurisdiction, the legislation involved and the year in which the decriminalisation or legalisation, as the case would be, occurred.
  13. In Prince II,the Court said that the harmful effect of cannabis which the prohibition sought to prevent was the psychological dependence that cannabis had the potential to produce. The Court pointed out that on the medical evidence on record in that case there was no indication of the amount of cannabis that had to be consumed in order to produce such harm. The Court also stated that on the medical evidence on record, there could be no question that uncontrolled consumption of cannabis, especially when consumed in large doses posed a risk of harm to the user.
  14. In the minority judgment however, it was pointed out that on the medical evidence on record it was equally clear that there was a level of consumption of cannabis that was safe in that it was unlikely to pose any risk of harm. The medical evidence on record was silent on what that level of consumption was. Nor was there any evidence suggesting that it would be impossible to regulate the consumption of cannabis by restricting its consumption to that safe level. All that the medical evidence on record said was that while prolonged heavy use or less frequent use of a more potent preparation were associated with many different problems, one joint of dagga (cannabis) or even a few joints would not cause any harm.
  15. South Africa’s international obligations were subject to South Africa’s constitutional obligations. The Constitution was the supreme law of the Republic and, in entering into international agreements, South Africa had to ensure that its obligations in terms of those agreements were not in breach of its constitutional obligations. The Court could not be precluded by an international agreement to which South Africa would be a signatory from declaring a statutory provision to be inconsistent with the Constitution. Of course, it was correct that, in interpreting legislation, an interpretation that allowed South Africa to comply with its international obligations would be preferred to one that did not, provided that did not strain the language of the statutory provision.
  16. The High Court declared the provisions of section 5(b) of the Drugs Act to be inconsistent with the Constitution of the Republic of South Africa Act No. 108 of 1996 and invalid, only to the extent that they prohibited the use of cannabis by an adult in private dwellings where the possession, purchase or cultivation of cannabis for personal consumption by an adult. In its judgment, the High Court did not anywhere discuss dealing in cannabis nor did it discuss the activity of cultivation of cannabis.
  17. The High Court did not give any reasons why section 5(b) could not be said to constitute a reasonable and justifiable limitation of the right to privacy. However, the definition of the phrase “deal in” in section 1 of the Drugs Act threw light on why the High Court would have declared section 5(b) constitutionally invalid to the extent that it declared it. When section 5(b) was read with the definition of the phrase “deal in” in section 1 of the Drugs Act, one of its effects was that the performance of any activity in connection with the cultivation by an adult of cannabis in a private place for his or her personal consumption in private was criminalised.
  18. The issue of the cultivation of cannabis in private by an adult for personal consumption in private should not be dealt with simply on the basis that the cultivation of cannabis by an adult had to be in a private place and the cannabis so cultivated had to be for that adult person’s personal consumption in private. An example of cultivation of cannabis in a private place was the garden of one’s residence. It would or would not be that it could also be grown inside an enclosure or a room under certain circumstances. It would also be that one would cultivate it in a place other than in one’s garden if that place could be said to be a private place. The High Court was of the view that the prohibition of the performance of any activity in connection with the cultivation of cannabis by an adult in private for his or her personal consumption in private was inconsistent with the right to privacy entrenched in the Constitution and was constitutionally invalid.
  19. The provisions that were declared inconsistent with the Constitution included provisions that prohibited the purchase of cannabis. Although the provisions that the order of the High Court invalidated included provisions that prohibited the purchase of cannabis, in its judgment the High Court did not anywhere advance reasons why those provisions could not be said to constitute a reasonable and justifiable limitation of the right to privacy. A purchaser of cannabis would be purchasing it from a dealer in cannabis. Therefore, if the Court were to confirm the order declaring invalid provisions that prohibited the purchase of cannabis, it would, in effect, be sanctioning dealing in cannabis. That the Court could not do. Dealing in cannabis was a serious problem in the country and the prohibition of dealing in cannabis was a justifiable limitation of the right to privacy. The Court could therefore not confirm that part of the order of the High Court because it had no intention of decriminalising dealing in cannabis.
  20. The order of the High Court declared section 22A (10) inconsistent with the Constitution and, therefore, constitutionally invalid to the extent that it prohibited the use, possession, purchase or cultivation of in effect cannabis by an adult in a private dwelling for personal consumption. It did not anywhere refer to the use, possession, purchase or cultivation. It prohibited the sale and administration of, among others, cannabis for any purpose other than medicinal purposes unless one of the exceptions given in the provision applied. In the order of the High Court there was no reference to the sale or administration of cannabis. Since there was no reference in the order of the High Court to any activity prohibited by section 22A (10) nor were there reasons in the judgment of the High Court why section 22A (10) was declared constitutionally invalid, the Court proposed not to confirm the part of the order of the High Court that related to it.
  21. Section 40(1)(h) of the Criminal Procedure Act simply conferred power on a peace officer to arrest without a warrant any person who was reasonably suspected of committing or having committed an offence under any law governing, for example, the possession or conveyance of dependence-producing drugs. One of the effects of the judgment was that it was no longer a criminal offence for an adult to use or be in possession of cannabis in private for his or her own personal consumption in private. That meant that, after the handing down of the judgment, there would be no law governing possession of cannabis by an adult in private for his or her own personal consumption in private that made such possession a criminal offence. If that conduct would no longer be a criminal offence, there could be no basis for a peace officer to reasonably suspect an adult in that situation to be committing or to have committed an offence by being in possession of cannabis. There was therefore no need for that provision to be declared constitutionally invalid. When all of the above was taken into account including the increasing number of open and democratic societies in which possession of cannabis for personal use had either been legalised or decriminalised and the inadequate evidence put up by the State, the conclusion was inevitable that the State had failed to show that the limitation was reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
  22. The High Court’s intention was to declare as inconsistent with the Constitution the provisions of the sections referred to in the order in so far as they related to the use, possession, purchase and cultivation of cannabis in a home or dwelling for personal consumption of an adult. The effect of the order of the High Court was that an adult would not be committing any crime by using or possessing or cultivating cannabis in a private dwelling or in a home for his or her consumption but the moment he or she stepped out of the private dwelling or home, he or she would be committing a criminal offence. That meant that an adult who had cannabis in his or her pocket for his or her personal consumption within the boundaries of a private dwelling or home would not be committing an offence but he or she would be committing an offence if, for example, he or she were to step outside of the boundary of the home or private dwelling while such cannabis remained in his or her pocket and he or she possessed it for his or her personal consumption.
  23. There was no persuasive reason why the High Court confined its declaration of invalidity to the use or possession or cultivation of cannabis at a home or in a private dwelling. As long as the use or possession of cannabis was in private and not in public and the use or possession of cannabis was for the personal consumption of an adult, it was protected. Therefore, provided the use or possession of cannabis was by an adult person in private for his or her personal consumption, it was protected by the right to privacy entrenched in section 14 of the Constitution.
  24. Since the Court concluded that the limitation was not reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, an order would have to be made declaring the relevant provisions constitutionally invalid to the extent that they criminalised the use or possession of cannabis in private by an adult for his or her personal consumption in private. Indeed, that order should also declare invalid the provisions of section 5(b) read with definition of “deal in” in section 1 of the Drugs Act to the extent that they prohibited the cultivation of cannabis by an adult in private for his or her own consumption in private.
  25. The order of invalidity that the Court made in the matter should not operate with retrospective effect because it could have a disruptive effect on, and, cause uncertainty in, the criminal justice system. Accordingly, the order of invalidity in the case would operate prospectively. The operation of the order of invalidity should be suspended in order to afford Parliament an opportunity to correct the constitutional defect in the impugned provisions as identified in the judgment. If the order of invalidity were to come into operation immediately, that could cause many challenges in the criminal justice system in the country. With regard to the period of suspension, the High Court expressed the view that 24 months would be an appropriate period of suspension.
  26. The Court should grant interim relief so as to ensure that the Applicants and other people in circumstances similar to theirs were granted effective relief. In the instant case, if no interim relief was granted, there were many adult people who would continue to be arrested by the police and who would face criminal charges and, if convicted, possible imprisonment for the use or possession or cultivation of cannabis in private for personal consumption in private – something that the judgment said nobody should be arrested for or charged with. Interim relief therefore had to be granted.
  27. The interim relief the Court ought to grant had to be a reading-in. It had to read a new sub-paragraph (vii) into section 4(b) of the Drugs Act. The new sub-paragraph (vii) would read:

    No person shall use or have in his possession—

    (b)any dangerous dependence-producing substance or any undesirable dependence-producing substance,

    unless

    (vii) in the case of an adult, the substance is cannabis and he or she uses it or is in possession thereof in private for his or her personal consumption in private.

  28. As to section 5(b) of the Drugs Act, It seemed that the Court should read into the definition of the phrase “deal in” in section 1 of the Drugs Act after the word “cultivation” but before the comma the words “other than the cultivation of cannabis by an adult in a private place for his or her personal consumption in private”. With that reading-in, which was italics, the definition of the phrase “deal in” would read:

    ‘deal in’, in relation to a drug, includes performing any act in connection with the transshipment, importation, cultivation other than the cultivation of cannabis by an adult in a private place for his or her personal consumption in private, manufacture, supply, prescription, administration, sale, transmission or exportation of the drug.”

  29. As to section 22A(9)(a)(i) of the Medicines Act, the Court should read the following words and commas into that provision after the word “unless”:

    In the case of cannabis, he or she, being an adult, uses it or is in possession thereof in private for his or her personal consumption in private or, in any other case,

    With the reading-in, which is in italics, section 22A(9)(a)(i) would read like this:

    (9)(a) No person shall— (i) acquire, use, possess, manufacture or supply any Schedule 7 or Schedule 8 substance, or manufacture any specified Schedule 5 or Schedule 6 substance unless, in the case of cannabis, he or she, being an adult, uses it or is in possession thereof in private for his or her personal consumption in private or, in any other case, he or she has been issued with a permit by the Director-General for such acquisition, use, possession, manufacture, or supply: Provided that the Director-General may, subject to such conditions as he or she may determine, acquire or authorise the use of any Schedule 7 or Schedule 8 substance in order to provide a medical practitioner, analyst, researcher or veterinarian therewith on the prescribed conditions for the treatment or prevention of a medical condition in a particular patient, or for the purposes of education, analysis or research.

  30. The effect of the reading-in adopted was that whenever the impugned provisions prohibited the use or possession or cultivation of cannabis, an exception was created with the result that the use or possession of cannabis in private or cultivation of cannabis in a private place for personal consumption in private was no longer a criminal offence. All the time that was so only in respect of an adult and not a child. The judgment did not confine the permitted use or possession or cultivation of cannabis to a home or a private dwelling. That was because there were other places other than a person’s home or a private dwelling where the prohibition of the use or possession or cultivation of cannabis would be inconsistent with the right to privacy if the use or possession or cultivation of cannabis was by an adult in private for his or her personal consumption in private. Using the term in private instead of at home or in a private dwelling was preferable. The effect of the reading-in was:

    a) an adult person could, use or be in possession of cannabis in private for his or her personal consumption in private.

    b) the use, including smoking, of cannabis in public or in the presence of children or in the presence of non-consenting adult persons was not permitted.

    c) the use or possession of cannabis in private other than by an adult for his or her personal consumption was not permitted.

    d) The cultivation of cannabis by an adult in a private place for his or her personal consumption in private was no longer a criminal offence.

  31. In determining whether or not a person was in possession of cannabis for a purpose other than for personal consumption, an important factor to be taken into account would be the amount of cannabis found in his or her possession. The greater the amount of cannabis of which a person was in possession, the greater the possibility was that it was possessed for a purpose other than for personal consumption. Where a person was charged with possession of cannabis, the State would bear the onus to prove beyond a reasonable doubt that the purpose of the possession was not personal consumption.
  32. The above reading-in meant that, if a police officer found a person in possession of cannabis, he or she would only arrest the person if, having regard to all the relevant circumstances, including the quantity of cannabis found in that person’s possession, it could be said that there was a reasonable suspicion that a person had committed an offence under section 40(1)(b) or (h) of the Criminal Procedure Act. The references to possession of cannabis, for personal use, or for personal consumption helped to ensure that the Court did not have to specify the amount or quantity of cannabis that would be possessed. The Court only needed to say that the amount that would be possessed was an amount for personal consumption.
  33. At a practical level, a question that arose was: if a police officer found someone in possession of cannabis, how would he or she know whether that person was in possession of that cannabis for personal consumption? Would he or she rely on that person’s word? Would he or she ask questions aimed at establishing that? Obviously, a police officer would ask the person questions but his or her answers would not be decisive. The police officer would need to have regard to all the relevant circumstances and take a view whether the cannabis possessed by a person was for personal consumption. If he or she took the view, on reasonable grounds, that that person’s possession of cannabis was not for personal consumption, he or she would arrest the person. If he or she took the view that the cannabis in the person’s possession was for that person’s personal consumption, he or she would not arrest him or her. There would be cases where it would be clear from all the circumstances that the possession of cannabis by a person was for personal use or consumption. There would also be cases where it would be clear from all the circumstances that the possession of cannabis by a person was not or could not be for personal consumption or use. Then, there would be cases where it would be difficult to tell whether the possession was for personal consumption or not. In the latter scenario a police officer should not arrest the person because in such a case it would be difficult to show beyond reasonable doubt later in court that that person’s possession of cannabis was not for personal consumption.
  34. The reading-in would be criticized on the basis that it did not provide either a police officer or anyone with certainty as to when the possession of cannabis could be said to have crossed the line of personal use or consumption and would, therefore, have become prohibited. However, that criticism could equally be levelled at the law in regard to, for example, the crime of negligent driving. A police officer who saw a car that was being driven in a certain manner formed a view whether or not the driver of that car was driving negligently. That view would be based on the police officer’s observation of the manner in which the car was being driven.
  35. If the police officer took the view that the driver was not driving negligently, he or she would not arrest the driver. If, on the other hand, the police officer took the view that the car was being driven negligently and he or she thought that his belief was based on reasonable grounds, he or she would arrest the driver for negligent driving. That driver would be charged with negligent driving and the Court would decide whether he or she was driving negligently. If the Court concluded that the State had proved beyond reasonable doubt that the driver was driving negligently, it would convict the driver of negligent driving. Whether or not a driver was driving or drove his or her car negligently depended upon whether a reasonable driver in his or her position could have driven the way he drove. In other words, it depended on whether he or she had fallen short of the standard of driving expected from a reasonable driver in his or her position.
  36. The reading-in the Court had adopted in the judgment would be criticized on the basis that it created uncertainty, the uncertainty that it would create was no worse than the uncertainty in the law connected with the crime of negligent driving. Just as a police officer would look at the facts in regard to how a driver was driving his or her motor vehicle and take a view whether the driver should be arrested for negligent driving, so, too, would a police officer take a view of the facts in the case of possession of cannabis whether or not the person concerned was in possession of the cannabis for personal consumption in private. If he took the view that it was not being possessed for personal consumption or use, he or she would arrest the person and cause him to be charged criminally. If, however, he was satisfied that the person was in possession of cannabis for personal consumption or use, he or she would not arrest that person. There were statutory offences which also required a police officer to take a view on given facts and then decide whether to arrest a person or not.
  37. It was clear from Section 36 of the General Law Amendment Act and Section 2&3 of Stock Theft Act that an essential element of the offence of possession of stolen goods was that the person found in possession of the goods had to be unable to give a satisfactory account of such possession. If he or she was able to give a satisfactory account of his or her possession of the goods, his or her possession of the goods did not constitute a criminal offence. If, however, he or she was unable to give a satisfactory account of his or her possession of the goods, his or her possession of the goods was a criminal offence provided that the other elements of the offence were satisfied.
  38. Before a police officer could arrest a person in connection with the crime created by section 36, he or she had to first ask the person for an account of his or her possession of the goods. That meant that the person would give his or her account of the possession of the goods to the police officer and the police officer would have to weigh it up together with all other information and decide whether the account was satisfactory or not. If the police officer thought that the account was satisfactory, he or she would not arrest the person. If he or she thought that the account was unsatisfactory, he or she would arrest the person and, ultimately, the court would decide at the trial whether the account was satisfactory or not. That was no different from what would have to happen on the above reading-in if a police officer found a person in possession of cannabis and he or she thought it was not for personal consumption. He or she would ask the person such questions as would be necessary to satisfy himself or herself whether the cannabis he or she was in possession of was for personal consumption. If, having heard what the person had to say, the police officer thought that the explanation was not satisfactory, he or she would arrest the person. Ultimately, it would be the court that would decide whether the person possessed the cannabis for personal consumption. The regulations to the National Environment Management: Biodiversity Act, defined a possession permit as a permit for keeping or conveying a specimen of a listed threatened or protected species for personal use in a person’s possession without carrying out any other restricted activity.
  39. The Court had addressed the above question of how a police officer would know whether an adult who was in possession of cannabis was in possession thereof for personal consumption or not. In regard to cultivation, the question also arose as to how a police officer who came across cannabis that was being grown in a garden or in a private place would know whether the adult person growing it was growing it for his or her personal consumption. All the considerations the Court had discussed above in relation to how a police officer would determine whether cannabis was possessed for personal consumption applied with equal force to the cultivation of cannabis in a private place for personal consumption and they needed not be repeated.
  40. The reading-in that the Court had adopted in the judgment would apply until such time that Parliament cured the constitutional defect. If Parliament failed to cure the constitutional defect within the period of the suspension of the order of invalidity, the reading-in would continue to be part of the legislation.

Application allowed

Orders

i. The application to stay the proceedings was dismissed.

ii. The application brought by King Adam Kok V, the Griqua Nation, Chief Petros Vallbooi and the /Auni San People for leave to intervene as parties was dismissed.

iii. Leave to appeal was granted.

iv. Leave to cross-appeal was granted.

v. The appeal was dismissed.

vi. The cross-appeal was upheld in part to the extent that the reference in the order of the High Court to “in a private dwelling” or “in private dwellings” was replaced with “in private” or in the case of cultivation, “in a private place”.

vii. The order of the Western Cape Division of the High Court was confirmed only to the extent reflected in the order and was not confirmed in so far as it was not reflected in the order.

viii. To the extent that the order of the Western Cape Division of the High Court purported to declare as constitutionally invalid provisions of sections referred to in that order that prohibited the purchase of cannabis, that part of the order was not confirmed.

ix. To the extent that the order of the Western Cape Division of the High Court excluded from the ambit of its order of the declaration of invalidity provisions of the sections referred to in that order that prohibited the use or possession of cannabis in private in a place other than a private dwelling by an adult for his or her own personal consumption in private, that part of the order was not confirmed.

x.It was declared that, with effect from the date of the handing down of the judgment, the provisions of sections 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 read with Part III of Schedule 2 of that Act and the provisions of section 22A(9)(a)(i) of the Medicines and Related Substances Control Act 101 of 1965 read with Schedule 7 of GN R509 of 2003 published in terms of section 22A(2) of that Act were inconsistent with right to privacy entrenched in section 14 of the Constitution and, therefore, invalid to the extent that they made the use or possession of cannabis in private by an adult person for his or her own consumption in private a criminal offence.

xi. It was declared that, with effect from the date of the handing down of the judgment, the provisions of section 5(b) of the Drugs and Drug Trafficking Act 140 of 1992 read with Part III of Schedule 2 of that Act and with the definition of the phrase “deal in” in section 1 of the Drugs and Drug Trafficking Act 140 of 1992 were inconsistent with the right to privacy entrenched in section 14 of the Constitution and, were, therefore, constitutionally invalid to the extent that they prohibited the cultivation of cannabis by an adult in a private place for his or her personal consumption in private.

xii. The operation of the orders in 10 and 11 above was suspended for a period of 24 months from the date of the handing down of the judgment to enable Parliament to rectify the constitutional defects.

xiii . During the period of the suspension of the operation of the order of invalidity:

section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 should be read as if it had sub-paragraph (vii) which read as follows:

a) “(vii), in the case of an adult, the substance was cannabis and he or she used it or was in possession thereof in private for his or her personal consumption in private.”

the definition of the phrase “deal in” in section 1 of the Drugs and Drug Trafficking Act 140 of 1992 should be read as if the words “other than the cultivation of cannabis by an adult in a private place for his or her personal consumption in private” appeared after the word “cultivation” but before the comma.

b) the following words and commas were to be read into the provisions of section 22A(9)(a)(i) of the Medicines and Related Substances Control Act 101 of 1965 after the word “unless”:

in the case of cannabis, he or she, being an adult, used it or was in possession thereof in private for his or her personal consumption in private or, in any other case,”

xiv. The above reading-in would fall away upon the coming into operation of the correction by Parliament of the constitutional defects in the statutory provisions identified in the judgment.

xv. Should Parliament fail to cure the constitutional defects within 24 months from the date of the handing down of the judgment or within an extended period of suspension, the reading-in in the order would become final.

xvi. Subject to paragraph 17, no order as to costs was made.

xvii. The Minister of Justice and Constitutional Development had to pay all disbursements and expenses reasonably incurred by Mr Gareth Prince, Mr Jeremy David Acton, Mr Ras Menelek Barend Wentzel and Ms Caro Leona Hennegin in opposing the appeal and in confirmatory proceedings.

Relevance to Kenyan Situation

Section 3 (2) (a) of the Narcotic Drugs and Psychotropic Substances Control Act lists cannabis as a banned substance. Decided cases in Kenya do affirm that cultivation, use and dealing in Bhang (Marijuana is illegal in Kenya.

Criminal Appeal No. 31of 2017-Dennis Muinde Muia v Republic The Appellant appealed against both convictionand sentence emanating from Criminal Case No. 1628 of 2015 at the Magistrate’s Court at Loitokitok. The Appellant and two others not before court were charged with the offence of trafficking in narcotic drugs contrary to Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994. The Appellant jointly with others already convicted and sentenced were found trafficking 31kgs of narcotic drugs namely bhang with a street value of Ksh. 310,000 in motor vehicle reg. No. KAK 681L Nissan Saloon EX.They had denied the charge necessitating the state to prove the case against them beyond reasonable doubt.

The High Court affirmed the sentence of seven (7) years as ruled by the trial Magistrate.

Though cultivation, use and sale of marijuana is illegal in Kenya, Hon. Ken Okoth intends to introduce a Marijuana control Bill with an aim of legalizing private use of Marijuana, a move that is strongly opposed by fellow legislators.

  1. October 11, 2018

    Too much law language but I support decriminalization.

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