By NLM Writer
The decision in summary
In a landmark ruling delivered on 18th September 2018, the Constitutional Court of South Africa not only confirmed the March 2017 order of the High Court of South Africa declaring Sections 4(b) and 5(b) of the Drugs Act, as read together with Part Three of the Second Schedule of the Act and Sections 22A(9)(a) (i) and 22A(10) of the Medicines Act as read together with seventh schedule of the Act, inconsistent with the right to privacy guaranteed by section 14 of the Constitution, it also expanded the scope of privacy beyond the confines of a home or a dwelling house.
The Court also overturned the order of the High Court invalidating provisions that prohibit the purchase of cannabis. In its view, to confirm the order declaring invalid provisions that prohibit the purchase of cannabis would, in effect, be sanctioning dealing in cannabis.
In doing so, the Constitutional Court extensively applied the doctrine of reading in to cure the imperfections in the hitherto unconstitutional provisions. Inter alia, the Court read the words “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,” into Section 22A (9) (a) (i) of the Medicines and Related Substances Control Act 101 of 1965 to have it read as follows:
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
Secondly, the Court added a sub paragraph seven to Section 4 (b) of the Drugs and Drug Trafficking Act 140 of 1992 as follows: “(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.”
Lastly, the Court added the words “other than the cultivation of cannabis by an adult in a private place for his or her personal consumption in private” to the definition of “dealing in” which means that Section 1 of the Drugs and Drug Trafficking Act now reads in this manner:
“deal in·’, in relation to a drug, includes performing any act in connection with the transhipment, importation, cultivation other than the cultivation of cannabis by an adult in a private place for his or her personal consumption in private, Collection, manufacture, supply, prescription, administration, sale, transmission or exportation of the drug.
The new provisions were to provide an interim relief to the applicants while Parliament corrected the defects in the cited sections. Among others, the Court left it to Parliament to decide on the quantity of marijuana that an adult person may possess, use or cultivate so as to amount to “personal use”. However, upon the lapse of two years, if parliament has not implemented the decision of the Court, the sections, as read into by the Court would retain.
Parties to the appeal
The respondents in this appeal were Mr Garreth Anver Prince, the applicant in case no 8760/2013, Jonathan David Rubin the plaintiff in case no 7295/2013 and Jeremy David Acton, one of the plaintiffs in case no 4153/2012. The High Court consolidated the various applications in the High Court. It also admitted Kathleen (“myrtle”) Clarke, Julian Christopher Stobbs and Clifford Alan Neale Thorpe as intervening parties being parties to similar matters in alternative courts. The three intervening parties supported the conclusion reached by the High Court but sought to expand the case beyond that dealt with by the High Court. In this regard, they sought to rely on rationality and legality to challenge the constitutional validity of the whole criminalisation of cannabis by various statutory provisions. In was the Court’s view, however, that it would not be in the interests of justice to widen the scope of this matter beyond the right of privacy as decided by the High Court.
At the High Court, the respondents raised a preliminary objection on the basis that the issues raised had already been canvased by the Constitutional Court in Prince v The President Cape law Society and others  ZACC 1; 2002 (2) SA 794(CC) (hereinafter identified as Prince 2002 ). In dismissing the PO, the Court observed that whether the prohibition of marijuana infringed on the right to privacy had not been in issue in Prince 2002.
As mentioned, the proceedings were an appeal of a March 2017 order of the High Court of South Africa declaring Sections 4(b) and 5(b) of the Drugs Act, as read together with Part Three of the Second Schedule of the Drugs Act and Sections 22A (9) (a)(i) and 22A(10) of the Medicines Act as read together with Seventh Schedule of the Medicines Act, inconsistent with the right to privacy guaranteed by Section 14 of the Constitution. The issue before the High Court had been “whether the infringement of the right to privacy caused by the impugned legislation could be justified in terms of section 36 of the Constitution.”
The High Court pointed out that the State bore “the burden” to justify the limitation of the right to privacy. At Paragraph 91, it said that the State had offered “very little further evidence of persuasion and weight to counter the report by Professor Shaw et al as the amici.
Professor Mark Shaw, Dr. Simon Howell, Dr. Andrew Faull, and Anine Kriegler of the Centre of Criminology at University of Cape Town had been tasked with assisting the Court and they submitted a report to the Court dealing with various aspects of cannabis. The summary of this report is as follows:
One, the question of how best to regulate cannabis must take into account and attempt to balance a range of different harms (and benefits) to different groups in society. The reduction of harms, rather than prevalence, should be the understood as the ultimate goal of drug policy. Recent years have seen major reduction in the global consensus on whether criminal punishment is an effective or desirable tool for reducing the harms around drugs, especially cannabis. Motivating for an end to drug prohibition need not imply the disparagement of any possible drug-related harm. Quite the reverse, for many, it is based on the understanding that prohibition is a very poor tool for managing those harms.
Two, the extent and nature of the relationships between cannabis use and crime levels are not clear. There is as yet no evidence that partial or complete removals of cannabis prohibition elsewhere have resulted in crime spikes. There is no reason to believe that there is good reason to believe that the removal of cannabis prohibition in South Africa would raise levels of crime appreciably (or at all). Even if they did so, it would not follow that cannabis prohibition was a desirable crime control policy option. There are numerous other harms and potential benefits to consider. For example, the strong and known link between alcohol and a range of negative outcomes (including crime) has not been sufficient to prohibit its production, sale, or consumption.
Three, the three United Nations Conventions on drugs require signatories to combat the availability of certain named drugs through establishing criminal offences. There is a growing sense, although certainly not (yet) a global consensus, that this is an ineffective way to control supply and an undesirable way to regulate drugs overall. The negative unintended consequences are such that many are of the opinion that this kind of drug policy has done more harm than drugs themselves.
Four, a number of countries have begun experimenting with a range of different approaches, including full decriminalisation of the use of all or some drugs, while (for the most part) remaining signatories to the Conventions. These examples are being closely watched. Exactly what kind of system prohibition is replaced with is very important in determining the outcomes. The appropriate regulatory system will depend on a range of local conditions. Ending prohibition would not simply be a matter of removing 6.2 6.3 6.4 30 6.5 drugs from the criminal justice sphere, but would require crafting a place for them within a more evidence-based, integrated, co-ordinated, and adequately resourced framework based on harm reduction principles.
Five, cannabis is scheduled among the most dangerous drugs, requiring the most stringent controls. The growing evidence that this is not an appropriate or proportionate way to approach the harms around cannabis has provided much of the impetus for recent challenges to drug prohibition in several countries and on the international level. Cannabis legalisation initiatives are underway or being seriously considered in an increasing number of American states, as well as Canada, Italy, Spain, Jamaica, and several Latin American countries.
Six, the SAPS appears to place a high priority on drug-related crimes. It has made almost half a million arrests for it in the last two years, or about l5 percent of all its arrests. Very few of these arrests result in convictions. Many are likely to involve drug users and very low level suppliers rather than any people with strategic value in disrupting drug supply. This is not an effective use of police and criminal justice resources. No longer pursuing cannabis laws could result in major savings. These savings could be put towards more evidence-based drug policy approaches.
Seventh, the performance targeting of drug crimes (of which cannabis are the majority) creates perverse incentives for the police, discouraging more strategic and effective drug supply reduction in their areas. It also provides strong incentives for indiscriminate arrests and potential abuse of easy targets. This is unlikely to contribute to police legitimacy. In addition, the pursuit of drug crimes may be a key contributor to police corruption. An end to petty cannabis prohibition could facilitate a criminal justice system that is more rational and effective, less wasteful and abusive, less corrupt, and better in line with South Africa’s constitutional values.
Lastly, the court case is timely and will be watched around the world, where more people and authorities than ever before are asking these same questions. It forms part of a rapidly developing global conversation about harm, human rights, ethics, and appropriate state responsibilities and limits. Good research and expert opinion should certainly play an important role in determining the route ahead. So should legal concerns. However, the court advisors firmly believe that these questions are inherently political ones that will require legislative and far-reaching policy changes, and so must ultimately be contested in the political arena.
In paragraph 69, The High Court referenced a report by the World Health Organisation on the health and social consequences of non-medical cannabis that showed cannabis dependency to be less severe than alcohol or opioid dependency. It also relied upon an affidavit by William Hofmeyr, at the time, the Deputy National Director of Public Prosecutions. Based on this affidavit, the High Court at paragraph 101 stated thus:
“In summary, if the NPA considers that a policy of diversion may be the more appropriate approach to personal consumption use in the context of cannabis in South Africa, this adds weight to the broader argument that the criminalisation of cannabis for personal use and consumption is open to significant doubt…Diversion and other policy choices as opposed to the blunt use of the criminal law and, in particular, imprisonment, support the conclusion that the state cannot justify the prohibition as contained in the impugned legislation as it stands.”
On the respondent’s submission (and indeed the oft-cited argument the legalisation of cannabis) that the objectives of the prevention of crime, a reduction in crime, prevention of negative effects on driving ability and detrimental neurological, cardiovascular and respiratory effects are met by the impugned provisions, the court placed onus on the state to show why a less restrictive means to achieve that purpose does not exist. The orders were as has been discussed supra. (