Dazed and confused
By Belinda van der Vyver and Jerome Veldsman
Prince and Others v Minister of Justice and Constitutional Development and Others, a decision of the High Court, Cape Town, on 31 March 2017, dealt with the partial ‘legalising’ of the use of cannabis in South Africa. The case was heard by three Judges; Judge Davis wrote the judgment, and the other two Judges concurred. The judgment consists of approximately 17 500 words.
Simplified, the applicants launched a restricted constitutional attack on the following provisions in the Drugs and Drug Trafficking Act (the Drugs Act):
No person shall use or have in his or her possession any dangerous/undesirable dependence-producing substance, unless such use or possession is duly under legal medical supervision, or the like.
No person shall deal in any dangerous/undesirable dependence-producing substance, unless such dealing is duly for legal medical treatment, or the like.
The defined terms “dangerous dependence-producing substance” and “undesirable dependence-producing substance” include many many different substances, including the active ingredient in cannabis (synonyms include dagga and marijuana).
Judge Davis ‘distilled’ the case to the following: “[A]pplicants invoked a veritable constitutional laundry list to argue that the criminal prohibition of the use and possession of cannabis in their own homes and “properly designated places” was unconstitutional. …. However, the core of this case and thus the main challenge against the legislation … is to locate in the right to privacy.”
Judge Davis repeated the oft spoken sentiments that South Africa is a democracy, and not a juristocracy (ruled by Judges), and that the judiciary, legislature, and executive share constitutional competence. Regarding this matter, Judge Davis held that “it is within the competence of a Court to hold that the impugned law fails to pass constitutional muster“.
Judge Davis held:
“[P]rivacy fosters and encourages the moral autonomy of citizens which is a central requirement of governance in a democracy.”
“[T]hose who wish to partake of a small quantity of cannabis in the intimacy of their home do exercise a right to autonomy which, without clear justification, does not merit interference from the outside community or the State.”
After consideration of the evidence and foreign case law, that there was a lack of “clear justification” for the limitation in the Drugs Act of the right to privacy of adults to “partake of a small quantity of cannabis in the intimacy of their home“.
Judge Davis ruled that the relevant provisions in the Drugs Act are unconstitutional “and invalid, only to the extent that they prohibit the use of cannabis by an adult in private dwellings where the possession, purchase or cultivation of cannabis for personal consumption by an adult.” This ruling is confusing. We think it is intended to mean that “permitted conduct” is the use, possession, purchase, and cultivation of cannabis in a private dwelling for purposes of the personal consumption of an adult.
Judge Davis further ruled that:
The declaration of invalidity is suspended for 24 months in order to allow Parliament to correct the defects as set out in this judgment.
Until Parliament has made such amendments or the period of suspension expires, “it will be deemed to be a defence to a [criminal] charge under [the relevant provisions in the Drugs Act] that the use, possession, purchase or cultivation of cannabis in a private dwelling is for the personal consumption of the adult accused“. (underlining added)
If an adult purchases cannabis in his own private dwelling, the seller would have brought the cannabis to such dwelling from elsewhere. If the seller is then charged, as the cannabis is for the personal consumption of the purchaser (not the accused seller), will the defence hold up?
If an adult purchases cannabis in the private dwelling of a friend, for personal consumption by the first-mentioned adult in his own private dwelling, will the defence hold up if such adult is caught in possession en route to his own private dwelling?
The judgment does not provide answers to these or related and similar questions.
The case was heard on application. So, the only evidence before the Court consisted of written affidavits, and no witnesses were cross-examined. Such evidence was by no means comprehensive of all facts and opinions regarding the controversy in question. There is no mention in the judgment of the recent case Stransham-Ford v Minister of Justice and Correctional Services and Others, in which the Supreme Court of Appeal was critical on Courts deciding constitutional questions on incomplete/insufficient evidence.
A declaration of invalidity of national legislation by a High Court has no force unless it is confirmed by the Constitutional Court. There is no guarantee that the Constitutional Court will agree with the High Court in all respects.
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