Dagga ruling a joint victory - now to hash out the details

2018-09-18 13:04
“Dagga is my right”, a placard reads outside the Constitutional Court on Tuesday. (Iavan Pijoos, News24)

“Dagga is my right”, a placard reads outside the Constitutional Court on Tuesday. (Iavan Pijoos, News24)

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The highest court in the land lived up to its name on Tuesday and upheld a Western Cape High Court decision that it is legal to be in possession of dagga in your private capacity.

The State's arguments on the limitation of the use of dagga went up in smoke as Deputy Chief Justice Raymond Zondo gave the green light for personal dagga consumption.

"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 private space," Zondo said.

The ruling follows a Western Cape High Court judgment that the possession, cultivation and use of dagga for private use was allowed.

READ: ConCourt rules that personal use of dagga is not a criminal offence

The court gave Parliament 24 months to update legislation relating to marijuana to be in line with its ruling.

This is a joint victory for Dagga Party leader Jeremy Acton and Rastafarian Garreth Prince who argued on December 13 and 14, 2016, for the decriminalisation of the herb.

ALSO READ: How the Western Cape High Court dagga judgment applies to you

There are still several technical issues to weed out, though, such as the amount of dagga a person can legally have in their possession.

"The judgment does not specify how many grams of cannabis can a person use or have in private," Zondo said.

You can't light up in public

Phephelaphi Dube, director at the Centre for Constitutional Rights, told News24 that she viewed the judgment as "cautiously progressive".

"It balances, on the one hand, the right to privacy and associated entitlements such as dignity and wellbeing against the need to maintain a lawful and orderly society.

"With due deference to the separation of powers, it will be up to Parliament to determine the lawful quantities that individuals may cultivate and consume."

According to Dube, the judgment allows individuals to cultivate, to grow and consume cannabis "in certain narrowly defined spaces", such as their homes.


"It would suggest that one can’t simply light up and smoke dagga in public spaces.

"That's where the judgment draws the line: it has to be within personal spaces and it is closely linked to the right to privacy," Dube said.

Read more: Dagga can be used in the home, Western Cape High Court rules

How much is too much?

Dube said Parliament still had to determine the legal amount of dagga a person could reasonably have in their possession for private consumption.

That amount is currently undetermined.

But Dube warned that this did not mean that one could now cultivate huge quantities of marijuana in one’s garden.

"From a reasonable viewpoint, a huge amount of dagga in one person’s possession can be seen as dealing in drugs, which is a criminal offence."

In his judgment, Zondo said 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, News24 reported earlier.

Dube said it would be up to Parliament to decide on the legality of purchasing and transporting dagga or cannabis seeds.

So, once Parliament decides on specific provisions, and a person complies with those provisions, it would be legal for a person to grow and smoke dagga in private spaces.  

Buying or selling dagga on the street is still considered illegal, Dube said.

Read more on:    johannesburg  |  narcotics  |  court  |  health  |  dagga

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