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Judgment shows fundamental shift in how SA law views cannabis and its social utility

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Judgment shows fundamental shift in how SA law views cannabis and its social utility

25th September 2018

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The Constitutional Court judgement in 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 [2018] ZACC 30, handed down on 18 September 2018, paves the way for legislative change in respect of the use of cannabis by an adult in private. 

The judgement, fundamentally, has two effects; the first is to read-in various provisions, prescribed by the Constitutional Court, into the Medicines & Related Substances Act No. 101 of 1965, as amended, and the Drugs and Drug Trafficking Act No. 140 of 1992, respectively, and the second is to require the necessary amendments to be enacted by Parliament to the statutes in question within twenty-four months of the date of the judgement.
 
The judgement represents a fundamental shift in the manner in which South African law views cannabis and its social utility.  Whilst the judgement is premised on the right to privacy in the Bill of Rights, the judgement also represents an arguably global shift in the view of cannabis and its use in society especially as a potential medicine.  However, the judgement contains certain limitations in respect of cannabis, more particularly, dealing in cannabis, which the judgement does not endorse through legalisation. 

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The Constitutional Court considered the purchasing of cannabis as "a serious problem in this country and the prohibition of dealing in cannabis is a justifiable limitation of the right to privacy." (at paragraph 88)  Therefore, whilst the judgement goes some way to decriminalising formally the use of cannabis by an adult in private, certain aspects of the cannabis supply chain remain unlawful – some may view that uncomfortable state of affairs as a severe limitation on their ability to use cannabis.  Whilst the purchasing of cannabis remains an illegal activity, the cultivation of cannabis in private is lawful.  The practical effects of the judgement, in respect of the consumption of cannabis, thus remain arguably contentious.
 
The emphasis now moves to giving effect to the amendment of the relevant legislation to align it with the judgement.  The Constitutional Court has provided for a period of twenty-four months for the necessary legislative amendments to made.  Pending the amendments in law, the use, possession and cultivation of cannabis by an adult in a private place is allowed.  Should the necessary amendments to the legislation concerned not be forthcoming within the prescribed twenty-four month period, or an extended period as permitted, the order of the Constitutional Court will become final."

Written by Neil Kirby, director and head of healthcare and life sciences at Werksmans Attorneys

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