Private Use Of Cannabis Decriminalized By South African Apex Court On Grounds Of Privacy Right [Read Judgment]

"Prohibition of the performance of any activity in connection with the cultivation and possession of cannabis by an adult in private for his or her personal consumption in private is inconsistent with the right to privacy entrenched in the Constitution and is constitutionally invalid".The Constitutional Court of South Africa has declared that penalizing possession, use and cultivation of cannabis for personal consumption in private is unconstitutional as it infringes an individual's right to privacy. This significant ruling was delivered by a ten judges bench of the Constitutional Court while considering confirmation of the judgment of the Western Cape Division of High Court, which had earlier struck down the penal provisions.It is pertinent to note that right to privacy is specifically guaranteed as a fundamental right as per Section 14 of the South African Constitution.Involved in the case was the validity of sections 4(b) and 5(b) of the Drugs and Drug Trafficking Act 140 of 1992 (Drugs Act) and sections 22A(9)(a)(i) and 22A(10) of the Medicines and Related Substances Control Act 101 of 1965 (Medicines Act). Section 4(b) of the Drugs Act prohibited use or possession of any dangerous dependence-producing substance or any undesirable dependence-producing substance. Section 5(b) prohibited dealing in any dangerous dependence–producing substance or any undesirable dependence-producing substance. Cultivation of cannabis is treated as 'dealing in' it, as per the definition clause of the Act. Likewise, Section 22A(9)(a)(i) of the Medicines Act prohibited use and possession of scheduled drugs, which included cannabis. The conduct prohibited by section 22A(10) is the sale or administration of any “scheduled substance or medicine” for any purpose other than medicinal purposes.The High Court struck down the above sections as a disproportionate and unjustified interference in right to privacy. The High Court observed that "privacy concerns dictate dictate and our constitution recognises that there should be an area of autonomy that precludes outside intervention"."The evidence, read as a whole, cannot be taken to justify the use of criminal law for the personal consumption of cannabis. The present prohibition contained in the impugned legislation does not employ the least restrictive means to deal with a social and health problem for which there are now a number of less restrictive options supported by a significant body of expertise. The additional resources that may be unlocked for use of policing of serious crimes cannot be over emphasised", said the High Court.As per provisions of the South African Constitution, a judgment of the High Court invalidating any statutory provision needs to be confirmed by the Constitutional Court to be operative. Thus, the proceedings reached the Constitutional Court. Also, the State filed appeal against the High Court judgment. The applicants too filed cross-appeals against the High Court judgment, to the extent it restricted the scope of exclusion only to use and cultivation of cannabis in one's private dwelling. JUDGMENT: The criminal prohibition of possession, use or cultivation of cannabis by an adult person for personal consumption in private is an infringement of the right to privacy of an adult person and constitutionally invalid. (Minister of Justice v Prince) pic.twitter.com/IwA35T4QE7— Constitutional Court (@ConCourtSA) September 18, 2018Confirmation By Constitutional CourtThe Constitutional Court examined the issue in the light of right to privacy, as enshrined in Section 14, and also Section 36 of the Constitution, which listed factors to be taken into account factors be taken into account in determining whether the limitation of a right entrenched in the Bill of Rights is reasonable and justifiable. These factors, built on the proportinality principle are :- a) nature of 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.At the outset, the Constitutional Court held that the penal provisions limited the right to privacy. The next step for the Court was to examine whether the limitation was reasonable and justified as per Section 36.The State defended the provisions in the interests of “the health, safety and psychological well-being of persons affected by the use of cannabis”. In this regard, the Court referred to the report of the South African Central Drug Authority that indicated, ihat, among alcohol, tobacco and cannabis “alcohol causes the most individual and social harm …”. The report of WHO that "the adverse health and social consequences of cannabis use reported by cannabis users who seek treatment for dependence appear to be less severe than those reported by persons dependent on alcohol or opioid" was also referred to. It was also noted that there are many democratic societies based on freedom, ...

Private Use Of Cannabis Decriminalized By South African Apex Court On Grounds Of Privacy Right [Read Judgment]

Manu Sebastian

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