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[2018] ZACC 30
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Minister of Justice and Constitutional Development and Others v Prince (Clarke and Others Intervening); National Director of Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others v Acton (CCT108/17) [2018] ZACC 30; 2018 (10) BCLR 1220 (CC); 2018 (6) SA 393 (CC); 2019 (1) SACR 14 (CC) (18 September 2018)
Links to summary
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
108/17
In the matter
between:
MINISTER OF
JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
First
Applicant
MINISTER OF
POLICE
Second
Applicant
MINISTER OF
HEALTH
Third
Applicant
MINISTER OF TRADE
AND
INDUSTRY
Fourth
Applicant
NATIONAL DIRECTOR
OF
PUBLIC
PROSECUTIONS
Fifth
Applicant
and
GARRETH
PRINCE
Respondent
and
KATHLEEN
(“MYRTLE”)
CLARKE
First
Intervening Party
JULIAN
CHRISTOPHER
STOBBS
Second
Intervening Party
CLIFFORD ALAN
NEALE
THORPE
Third
Intervening Party
and
DOCTORS FOR LIFE
INTERNATIONAL
INC
Amicus
Curiae
In the matter
between:
NATIONAL DIRECTOR
OF
PUBLIC
PROSECUTIONS
First
Applicant
MINISTER OF
JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
Second
Applicant
MINISTER OF
HEALTH
Third
Applicant
MINISTER OF
SOCIAL
DEVELOPMENT
Fourth
Applicant
MINISTER OF
INTERNATIONAL
RELATIONS AND
COOPERATION
Fifth
Applicant
MINISTER OF TRADE
AND
INDUSTRY
Sixth
Applicant
MINISTER OF
POLICE
Seventh
Applicant
and
JONATHAN DAVID
RUBIN
Respondent
In the matter
between:
NATIONAL DIRECTOR
OF
PUBLIC
PROSECUTIONS
First
Applicant
MINISTER OF
JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
Second
Applicant
MINISTER OF
HEALTH
Third
Applicant
MINISTER OF
SOCIAL
DEVELOPMENT
Fourth
Applicant
MINISTER OF
INTERNATIONAL
RELATIONS AND
COOPERATION
Fifth
Applicant
MINISTER OF TRADE
AND
INDUSTRY
Sixth
Applicant
MINISTER OF
POLICE
Seventh
Applicant
and
JEREMY DAVID
ACTON
First
Respondent
RAS MENELEK
BAREND
WENTZEL
Second
Respondent
CARO LEONA
HENNEGIN
Third
Respondent
Neutral citation:
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
Coram:
Zondo ACJ, Cameron J, Froneman J, Jafta J,
Kathree Setiloane AJ, Kollapen AJ, Madlanga J,
Mhlantla J, Theron J and Zondi AJ
Judgments:
Zondo ACJ (unanimous)
Heard on:
7
November 2017
Decided on:
18 September 2018
Summary:
sections
4(b) and 5(b) of
Drugs and Drug Trafficking Act 140 of 1992
read with
Part III
of Schedule 2 of that Act and section 22A(9)(a)(1) of
the Medicines and Related Substances Control Act 101 of 1965
inconsistent
with section 14 of the Constitution to the extent that
they criminalise the use or possession in private or cultivation in a
private
place of cannabis by an adult for his or her own personal
consumption in private. Interim relief – reading-in order
of invalidity granted but suspended for 24 months and interim relief
granted.
ORDER
On application for
confirmation of an order of constitutional invalidity granted by the
Western Cape Division of the High Court,
Cape Town (Davis J):
1. The application to stay these proceedings is dismissed.
2. The application brought by King Adam Kok V, the Griqua Nation,
Chief Petros Vallbooi and the /Auni San People for leave to intervene
as parties is dismissed.
3. Leave to appeal is granted.
4. Leave to cross-appeal is granted.
5. The appeal is dismissed.
6. The cross-appeal is upheld in part to the extent that the
reference in the order of the High Court to “in a private
dwelling”
or “in private dwellings” is replaced
with “in private” or in the case of cultivation, “in
a private
place”.
7. The order of the Western Cape Division of the High Court is
confirmed only to the extent reflected in this order and is not
confirmed in so far as it is not reflected in this order.
8. To the extent that the order of the Western Cape Division of the
High Court purported to declare as constitutionally invalid
provisions of sections referred to in that order that prohibit the
purchase of cannabis, that part of the order is not confirmed.
9. To the extent that the order of the Western Cape Division of the
High Court excluded from the ambit of its order of the
declaration of invalidity provisions of the sections referred to in
that order that prohibit the use or possession of cannabis
in private
in a place other than a private dwelling by an adult for his or her
own personal consumption in private, that part of
the order is not
confirmed.
10. It is declared that, with effect from the date of the handing
down of this judgment, the provisions of
sections 4(b)
of the
Drugs
and Drug Trafficking Act 140 of 1992
read with
Part III
of Schedule 2
of that Act and the provisions of section 22A(9)(a)(i) of the
Medicines and Related Substances Control Act 101
of 1965 read with
Schedule 7 of GN R509 of 2003 published in terms of section 22A(2)
of that Act are inconsistent with right
to privacy entrenched in
section 14 of the Constitution and, therefore, invalid to the
extent that they make the use or possession
of cannabis in private by
an adult person for his or her own consumption in private a criminal
offence.
11. It is declared that, with effect from the date of the handing
down of this judgment, the provisions of
section 5(b)
of the
Drugs
and Drug Trafficking Act 140 of 1992
read with
Part III
of Schedule 2
of that Act and with the definition of the phrase “deal in”
in
section 1
of the
Drugs and Drug Trafficking Act 140 of 1992
are
inconsistent with the right to privacy entrenched in section 14 of
the Constitution and, are, therefore, constitutionally invalid
to the
extent that they prohibit the cultivation of cannabis by an adult in
a private place for his or her personal consumption
in private
12. The operation of the orders in 10 and 11 above is hereby
suspended for a period of 24 months from the date of the handing
down
of this judgment to enable Parliament to rectify the constitutional
defects.
13. During the period of the suspension of the operation of the order
of invalidity:
(a)
section 4(b)
of the
Drugs and Drug Trafficking Act 140 of 1992
shall
be read as if it has sub-paragraph (vii) which reads 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.”
(b)
the definition of the phrase “deal in” in
section 1
of
the
Drugs and Drug Trafficking Act 140 of 1992
shall be read as if
the words “other than the cultivation of cannabis by an adult
in a private place for his or her personal
consumption in private”
appear after the word “cultivation” but before the comma.
(c)
the following words and commas are to be read into the provisions of
section 22A(9)(a)(i) of the Medicines and Related Substances
Control
Act 101 of 1965 after the word “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,”
14. The above reading-in will fall away upon the coming into
operation of the correction by Parliament of the constitutional
defects
in the statutory provisions identified in this judgment.
15. Should Parliament fail to cure the constitutional defects within
24 months from the date of the handing down of this judgment
or
within an extended period of suspension, the reading-in in this order
will become final.
16. Subject to paragraph 17 below, no order as to costs is made.
17. The Minister of Justice and Constitutional Development must pay
all disbursements and expenses reasonably incurred by Mr Gareth
Prince, Mr Jeremy David Acton, Mr Ras Menelek Barend Wentzel and Ms
Caro Leona Hennegin in opposing the appeal and in confirmatory
proceedings.
JUDGMENT
ZONDO ACJ
(Cameron J, Froneman J, Jafta J,
Kathree Setiloane AJ, Kollapen AJ, Madlanga J,
Mhlantla J,
Theron J and Zondi AJ):
Introduction
[1] These are
confirmatory proceedings brought in terms of section 167(5) of the
Constitution
[1]
read with Rule 16 of the Rules of this Court. They follow upon
the lodgement by the Registrar of the Western Cape Division
of the
High Court of South Africa with the Registrar of this Court of
the order of constitutional invalidity made by that
Court in this
matter. The order was in relation to sections 4(b) and 5(b) of
the Drugs and Drug Trafficking Act 140 of 1992
(Drugs Act) read with
Part III of Schedule 2 to that Act and sections 22A(9)(a)(i) and
22A(10) of the Medicines and Related Substances
Control Act 101 of
1965 (Medicines Act) read with Schedule 7 of GN R509 of 2003
published in terms of section 22A(2) of the Medicines
Act.
[2] The High Court
suspended the order of invalidity for a period of 24 months from 31
March 2017. It said that that was to
allow Parliament to
correct the constitutional defects in the Drugs Act and Medicines Act
set out in the judgment. It is
neither necessary nor competent
for a High Court to suspend an order of constitutional invalidity
that relates to a statutory provision
or an Act of Parliament when it
grants such an order of constitutional invalidity. It is
unnecessary because section 172(2)
of the Constitution provides that
“an order of constitutional invalidity has no force unless it
is confirmed by the Constitutional
Court”. That means
that any order of constitutional invalidity of an Act of Parliament
or a provision of an Act of
Parliament made by a court other than
this Court does not take effect for as long as it has not been
confirmed by this Court.
Such a suspension order is incompetent
because it purports to suspend the operation of an order that is not
in operation in any
event. That order of invalidity is not in
operation because in terms of section 172(2) of the Constitution
which I have just
quoted above.
[3] The order of
invalidity was made in favour of various persons to whom the
High Court referred as applicants. Three
proceedings under
different case numbers had been instituted by different persons in
the High Court. In respect of case no 8760/2013
the
applicant was Mr Garreth Prince. Those were motion
proceedings. The respondents in those proceedings were various
Ministers including the Minister of Justice and Constitutional
Development who was the first respondent, the Minister of Police
who
was the second respondent, the Minister of Health who was the third
respondent and the Minister of Trade and Industry who was
the
fourth respondent. The Directorate of Public Prosecutions
was also cited. Mr Jonathan David Rubin was the
plaintiff in
case no 7295/2013. The defendants that he cited were the
respondents in case no 8760/2013 but he added the National
Director
of Public Prosecutions, the Minister of Social Development and the
Minister of International Relations and Cooperation.
The third
proceedings related to an action instituted under case no 4153/2012.
It had four plaintiffs, namely, Jeremy David
Acton, Ras Menelek
Barend Wentzel and Caro Leona Hennegin. The defendants in that
action were the same as those cited under
case no 7295/2013.
[4] The High Court
consolidated all the cases referred to above and heard them as one
matter. The papers lodged in the High
Court were not prepared
by practising lawyers. That made it difficult for the High
Court to understand the case that the
applicants or plaintiffs wanted
to put before it. The respondents / defendants in the
High Court proceedings have brought
an application for leave to
appeal against the decision of the High Court. They also oppose
confirmation of the High Court’s
order of constitutional
invalidity.
Counsel requested
by this Court
[5] Mr Ron Paschke
and Ms Jessica Foster of the Cape Bar appeared and presented argument
at the request of this Court. They
had done so at the High
Court as well. We are grateful to them for their assistance.
Amicus Curiae
[6] Doctors for Life
International Inc (Doctors for Life) applied for, and, was admitted
as amicus curiae. It submitted written
and oral argument.
It supported the State in seeking to have the order of the High Court
not confirmed. Doctors for
Life is an association incorporated
in terms of section 21 of the Companies Act 61 of 1973.
It is the
eighth defendant in a trial pending in the High Court of
South Africa, Gauteng Division, Pretoria, to which reference is made
later.
That trial was referred to simply as the
Stobbs
trial as Mr Julian Christopher Stobbs is one of the
plaintiffs in that matter. Fields of Green For All NPC (Fields
of
Green) also brought an application for admission as an amicus curiae
but it is convenient to deal with its application together
with the
application for leave to intervene that is dealt with immediately
below.
Intervening parties
[7]
Fields of Green brought an application for
admission as amicus curiae. Ms Kathleen (“Myrtle”)
Clarke, Mr
Julian Christopher Stobbs and Mr Clifford Alan Neale
Thorpe brought an application but theirs was one for leave to
intervene as
parties in this matter. Fields of Green and these
three individual applicants brought a joint application.
[8]
Prior to the hearing we dismissed Field of Green’s
application for admission as amicus curiae but granted the other
joint
applicants’ application for leave to intervene.
Here are our reasons for those decisions.
[9]
Fields of Green is an NGO established to deal with
all hindrances to the legalisation of the use of cannabis in South
Africa. It
is a non-profit company registered under the
Companies Act, 2008
. It advocates the decriminalisation and
regulation of cannabis for responsible adult use, industrial,
therapeutic, medicinal
and cultural use. It said that it
brought its application for admission as amicus curiae in the public
interest generally
and in the interests of anyone adversely affected
by the provisions of both the Drugs Act and Medicines Act which
criminalise the
use of cannabis.
[10]
Ms Clarke, Mr Stobbs and Mr Thorpe are plaintiffs
in the
Stobbs
trial
before Ranchod J in the
High Court, Pretoria,
where
the constitutional validity of the statutory provisions challenged in
this matter are also being challenged. Certain
criminal
proceedings have been stayed where they are charged with contravening
the same statutory provisions. Ms Clarke and
Mr Stobbs are
involved in one criminal trial and Mr Thorpe is involved in another.
The
Stobbs
trial
has been adjourned and will resume sometime this year.
[11]
Ms Clarke, Mr Stobbs and Mr Thorpe clearly have a
direct and substantial interest in this matter because, if this Court
were to
confirm the High Court’s order of constitutional
invalidity, they may be acquitted of certain of the charges they are
facing
in their respective criminal trials. The applicants in
the main application opposed the application for admission as an
amicus
curiae and application for leave to intervene. With
regard to Fields of Green, the applicants in the main application
stated
that Ms Clarke and Mr Stobbs are directors of Fields of Green
and that basically Fields of Green is them and they are Fields of
Green because they are the controlling minds of Fields of Green.
The applicants in the main application pointed out that
Ms Clarke
and Mr Stobbs did not disclose in their application their
relationship with Fields of Green but should have. They
also
contended that the submissions that Fields of Green intends to make
will be no different from those that Ms Clarke, Mr Stobbs
and Mr
Thorpe intended making if they were granted leave to intervene as
intervening parties.
[12]
Ms
Clarke, Mr Stobbs and Mr Thorpe made out a case to be granted leave
to intervene because they have a direct and substantial interest
in
these proceedings. Accordingly, it was appropriate to grant
them leave to intervene. Once we had reached this conclusion,
it stood to reason that we should refuse Fields of Green’s
application for admission as amicus curiae because its submissions
were to be no different from those of Ms Clarke, Mr Stobbs and Mr
Thorpe.
[13] 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. 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. In any event, the three intervening
parties
may pursue their other challenge in the
Stobbs
trial.
Therefore, to the extent that these intervening parties urged this
Court to widen the case, in the above sense, we
decline to do so.
[14] Shortly before
the hearing of this matter, an application was launched in this Court
for an order that King Adam Kok V, the
Griqua Nation, Chief Petrus
Vaalbooi and the / Auni San People be admitted as intervening parties
in this matter. Although
these parties may have an interest in
this matter, their application falls to be dismissed. The first
point is that they
brought their application too late. They
lodged their application with the Registrar on 1 November 2017 when
the matter was
set down for hearing on 7 November 2017. This
did not give everybody enough time to deal with their application
prior to
the hearing. Their application also falls to be
dismissed in any event because they sought to pursue a case based on
the
infringement of their cultural rights as entrenched in sections
30
[2]
and 31
[3]
of the Constitution which was never canvassed in the High Court.
Such a case must first be brought and canvassed in the High
Court
before it can be adjudicated by this Court. That is in a case
where no direct access is sought and it is not a matter
in which this
Court has exclusive jurisdiction. In the circumstances, their
application is dismissed.
Stay of
proceedings
[15] During the
hearing in this Court a question arose whether the proceedings in
this matter should be stayed pending the outcome
of the
Stobbs
trial. We were told that an important feature of that matter is
that a number of experts would be called to give evidence.
The
reason for the idea of a stay of proceedings was that it would be in
the interests of justice for this Court to decide all
issues involved
in the two matters in one matter rather than have issues decided
piece-meal. It was also said that this Court
would benefit from
the evidence of the experts that will be called in the
Stobbs
trial if the proceedings in this matter were to be stayed until the
Stobbs
trial reached this Court and both were decided
together.
[16] The State
supported the notion that the present proceedings be stayed. So
did Doctors for Life. I am of the view
that the present
proceedings should not be stayed pending the
Stobbs
trial.
This is because the State was given more than enough time to place
expert evidence before the High Court to show that,
to the extent
that the impugned provisions limited the right to privacy, the
limitation was reasonable and justifiable in an open
and democratic
society but it failed to do so. Furthermore, it is not clear
whether the expert evidence that will be led
in the
Stobbs
trial will cover the areas in this matter in which the evidence
presented by the State is unsatisfactory. In other words,
we
could stay these proceedings only to discover later that the expert
evidence presented in the
Stobbs
trial does not assist us in
this matter. In these circumstances, the present proceedings
should not be stayed.
Order of the High
Court
[17] Since these are
confirmatory proceedings, it is appropriate to quote the order
granted by the High Court. This is because
it is that order
that I must consider and decide whether to confirm, decline to
confirm, or confirm in part. The order of
the High Court reads
as follows:
“1. The following provisions are declared inconsistent with the
Constitution of the Republic of South Africa Act 108 of 1996
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 is for personal consumption by an adult:
1.1
sections 4(b) and 5(b) of the Drugs and Drug Trafficking Act 140 of
1992 (the Drugs Act) read with Part III of Sch 2 to
the Drugs
Act; and
1.2
section 22A(9)(a)(i) of the Medicines and Related Substances
Control Act 101 of 1965 (the Medicines Act) and s 22A(10)
read with schedule 7 of GN R509 of 2003 published in terms of
s 22A(2) of the Medicines Act.
2. This declaration of invalidity is suspended for a period of 24
months from the date of this judgment in order to allow Parliament
to
correct the defects as set out in this judgment.
3. It is declared that until Parliament has made the amendments
contemplated in paragraph 1 or the period of suspension has expired,
it will be deemed to be a defence to a charge under a provision as
set out in paragraph 1 of this order that the use, possession,
purchase or cultivation of cannabis in a private dwelling is for the
personal consumption of the adult accused.”
[18] It must be
noted that the provisions that the High Court declared inconsistent
with the Constitution are not all the provisions
of sections 4(b) and
5(b) of the Drugs Act and sections 22A(9)(a)(i) and 22A(10) of the
Medicines Act. The order of the High
Court declared the
provisions of those sections constitutionally 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 is for personal consumption by an adult”.
[19] The order of
the High Court declared constitutionally invalid not only the
provisions of the sections referred to therein that
prohibit the use
or possession of cannabis in a private dwelling but also the purchase
and cultivation of cannabis in a private
dwelling or home. The
High Court’s basis for declaring the provisions
constitutionally invalid to the extent that it
did was that they were
inconsistent with the right to privacy when an adult uses or is in
possession of, or, cultivates, cannabis
in a private dwelling or at
home for his or her consumption in private. For reasons that
will appear later, I shall deal
with the issues in this judgment on
the basis that the relevant provisions prohibited the use,
cultivation or possession of cannabis
in private by an adult for his
or her own personal consumption in private. This means that the
judgment is written within
the context of only the use or possession
or cultivation of cannabis by an adult in private for his or her
personal consumption
in private. I exclude the issue of
“purchase” because I deal with it separately later in
this judgment.
Impugned
provisions
[20] The provisions
of the Drugs Act which the High Court declared invalid are sections
4(b) and 5(b) read with Part III of Schedule
2 to that Act. The
provisions of the Medicines Act which were declared invalid are
sections 22A(9)(a)(i) and 22A(10) read
with Schedule 7 of GN R509 of
2003 published under section 22A(2) of that Act. Section 4(b)
of the Drugs Act reads:
“No person shall use or have in his possession—
. . .
(b) any dangerous dependence-producing substance or any undesirable
dependence-producing substance,
unless—
(i)
he is a patient who has acquired or bought any such substance—
(aa) from a medical practitioner, dentist or practitioner acting in
his professional capacity and in accordance with the requirements
of
the Medicines Act or any regulation made thereunder; or
(bb) from a pharmacist in terms of an oral instruction or a
prescription in writing of such medical practitioner, dentist or
practitioner,
and
uses that substance for medicinal purposes under the care or
treatment of the said medical practitioner, dentist or practitioner;
(ii)
he has acquired or bought any such substance for medicinal purposes—
(aa) from a medical practitioner, veterinarian, dentist or
practitioner acting in his professional capacity and in accordance
with the requirements of the Medicines Act or any regulation
made thereunder;
(bb) from a pharmacist in terms of an oral instruction or a
prescription in writing of such medical practitioner, veterinarian,
dentist or practitioner; or
(cc) from a veterinary assistant or veterinary nurse in terms of a
prescription in writing of such veterinarian,
with
the intent to administer that substance to a patient or animal under
the care or treatment of the said medical practitioner,
veterinarian,
dentist or practitioner;
(iii)
he is the Director-General: Welfare who has acquired or bought any
such substance in accordance with the requirements of the
Medicines Act or any regulation made thereunder;
(iv)
he, she or it is a patient, medical practitioner, veterinarian,
dentist, practitioner, nurse, midwife, nursing assistant, pharmacist,
veterinary assistant, veterinary nurse, manufacturer of, or wholesale
dealer in, pharmaceutical products, importer or exporter,
or any
other person contemplated in the Medicines Act or any regulation made
thereunder, who or which has acquired, bought, imported,
cultivated,
collected or manufactured, or uses or is in possession of, or intends
to administer, supply, sell, transmit or export
any such substance in
accordance with the requirements or conditions of the said Act or
regulation, or any permit issued to him,
her or it under the said Act
or regulation;
(v)
he is an employee of a pharmacist, manufacturer of, or wholesale
dealer in, pharmaceutical products, importer or exporter who
has
acquired, bought, imported, cultivated, collected or manufactured, or
uses or is in possession of, or intends to supply, sell,
transmit or
export any such substance in the course of his employment and in
accordance with the requirements or conditions of
the Medicines Act
or any regulation made thereunder, or any permit issued to such
pharmacist, manufacturer of, or wholesale dealer
in, pharmaceutical
products, importer or exporter under the said Act or regulation; or
(vi)
he has otherwise come into possession of any such substance in a
lawful manner.”
[21] Briefly,
section 4(b) prohibits the use or possession of any dangerous
dependence-producing substance or any undesirable
dependence-producing
substance unless one or more of the exceptions
listed therein applies.
[22] Section 5(b)
prohibits dealing in any dangerous dependence–producing
substance or any undesirable dependence producing
substance
unless one or more of the exceptions listed in that provision
applies. Section 5(b) reads:
“No person shall deal in—
…
(b) any dangerous dependence-producing substance or any undesirable
dependence producing substance, unless—
(i)
he has acquired or bought any such substance for medicinal purposes—
(aa) from a medical practitioner, veterinarian, dentist or
practitioner acting in his professional capacity and in accordance
with the requirements of the Medicines Act or any regulation made
thereunder;
(bb) from a pharmacist in terms of an oral instruction or a
prescription in writing of such medical practitioner, veterinarian,
dentist or practitioner; or
(cc) from a veterinary assistant or veterinary nurse in terms of a
prescription in writing of such veterinarian, and administers
that
substance to a patient or animal under the care or treatment of the
said medical practitioner, veterinarian, dentist or practitioner;
(ii)
he is the Director-General: Welfare who acquires, buys or sells any
such substance in accordance with the requirements of the
Medicines
Act or any regulation made thereunder;
(iii)
he, she or it is a medical practitioner, veterinarian, dentist,
practitioner, nurse, midwife, nursing assistant, pharmacist,
veterinary assistant, veterinary nurse, manufacturer of, or wholesale
dealer in, pharmaceutical products, importer or exporter,
or any
other person contemplated in the Medicines Act or any regulation made
thereunder, who or which prescribes, administers,
acquires, buys,
tranships, imports, cultivates, collects, manufactures, supplies,
sells, transmits or exports any such substance
in accordance with the
requirements or conditions of the said Act or regulation, or any
permit issued to him, her or it under the
said Act or regulation; or
(iv)
he is an employee of a pharmacist, manufacturer of, or wholesale
dealer in, pharmaceutical products, importer or exporter who
acquires, buys, tranships, imports, cultivates, collects,
manufactures, supplies, sells, transmits or exports any such
substance
in the course of his employment and in accordance with the
requirements or conditions of the Medicines Act or any regulation
made
thereunder, or any permit issued to such pharmacist,
manufacturer of, or wholesale dealer in, pharmaceutical products,
importer
or exporter under the said Act or regulation.”
[23] Paragraphs 1
and 3 of the order of the High Court includes the prohibition of the
cultivation of cannabis in a private dwelling
by an adult for his or
her personal consumption in private as one of the provisions that are
inconsistent with the right to privacy
entrenched in the Constitution
and invalid. Indeed, paragraph 3 of the order of the High Court
is to the effect that
it will be a defence to a charge of cultivation
of cannabis that the cultivation is in a private dwelling and is for
the personal
consumption of the adult accused person concerned.
[24] A reading of
the judgment of the High Court does not reveal what statutory
provision the High Court understood to prohibit
the cultivation of
cannabis in a private dwelling by an adult for his or her personal
consumption in private. On the face
of it, section 5(b) does
not itself seem to prohibit that activity when it is carried out for
the purpose just mentioned.
I say this notwithstanding the
reference to cultivation in section 5(b)(iii) and (iv).
However, it is only when one
reads the definition of the phrase “deal
in” in section 1 of the Drugs Act that one realises that in
relation to a
drug the definition includes “performing any act
in connection with” cultivation. The definition reads:
“‘deal
in’, in relation to a drug, includes
performing any act in connection with the transhipment, importation,
cultivation, collection,
manufacture, supply, prescription,
administration, sale, transmission, or exportation of the drug”.
One of the effects
of section 5(b) read with the definition of the
phrase “deal in” is that the performance of any act in
connection with
the cultivation of cannabis in a private dwelling or
in private by an adult for his or her personal consumption in private
is prohibited.
The High Court judgment must be taken to have
intended to declare this prohibition to be inconsistent with the
right to privacy
entrenched in the Constitution and, therefore,
invalid.
[25] Section
22A(9)(a)(i) of the Medicines Act reads:
“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 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.”
The conduct
prohibited by this provision that is relevant to the present matter
is the use and possession of any Schedule 7 substance.
Cannabis
is one of the substances listed in Schedule 7. When read with
Schedule 7 of GN R509 of 2003 published in terms of
section 22A(2)
of the Medicines Act, section 22A(9)(a)(i) is a prohibition of the
acquisition, use, possession, manufacture
or supply of, among others,
cannabis.
[26] Section 22A(10)
reads:
“Notwithstanding anything to the contrary contained in this
section, no person shall sell or administer any Scheduled substance
or medicine for [any purpose] other than medicinal purposes: Provided
that the Minister may, subject to the conditions or requirements
stated in such authority, authorise the administration outside any
hospital of any Scheduled substance or medicine for the satisfaction
or relief of a habit or craving to the person referred to in such
authority.”
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. This is subject to the exceptions
given in the provision. In its order the
High Court did not
include the sale or administration of cannabis. The order of
the High Court did not declare invalid any
provision prohibiting the
sale or administration of cannabis. However, it did declare
invalid provisions that relate to purchase
of cannabis that could be
found in any of the sections referred to in the order. Of
course, there can be no purchase without
a sale. If the order
of the High Court is not confirmed in so far as it related to
provisions prohibiting the purchase of
cannabis, there will be no
need to deal with section 22A(10) in this judgment. This is
because the sale or administration
of cannabis – which are the
activities prohibited by section 22A(2) were not included in the
order of the High Court.
High Court
[27] This matter was
heard by a Full Bench of the High Court consisting of Davis J,
Saldanah J and Boqwana J. Davis J
wrote the Court’s
unanimous judgment. The High Court dealt with the matter
on the basis that “the core of
the case brought before [it]”
was “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 based its
understanding of the
case brought before it on a passage in
Mr Prince’s founding affidavit. That passage reads:
“The substantive questions in this matter are to what extent
and in what way government may dictate, regulate or proscribe
conduct
considered to be harmful as well as what is the threshold the harm
must cross in order for government to intervene?
Can government
legitimately dictate what people eat, drink or smoke in the confines
of their own home or in properly designated
places? Privacy
concerns dictate and our constitution recognises that there should be
an area of autonomy that precludes
outside intervention.”
[4]
[28] The High Court
dealt with the right to privacy entrenched in section 14 of the
Constitution and referred to certain decisions
of this Court dealing
with the right to privacy to indicate the content and scope of that
right.
[5]
It then said that the question to be asked was “whether the
legislative framework, as I have outlined it, places limitations
on
this right to privacy”.
[6]
The High Court concluded that the impugned provisions limited the
right to privacy. It said:
“I should again emphasise that this particular right and breach
thereof in the present circumstances were not contested in
the
written submissions of the respondents and received a very tepid
treatment, at best, during oral argument. For these
reasons
therefore, the present dispute must ultimately be determined in terms
of the justification for the limitation of privacy
as advanced by the
respondents.”
[7]
[29] The High Court
went on to conduct a justification analysis in terms of section 36
of the Constitution in respect of the
impugned provisions to
determine whether the limitation of the right to privacy was
reasonable and justifiable in an open and democratic
society based on
human dignity, equality and freedom. The High Court
pointed out that the State bore “the burden”
to justify
the limitation of the right to privacy. It said that the State
had offered “very little further evidence
of persuasion and
weight to counter the report by Professor Shaw
et al
”.
[8]
The High Court continued: “Furthermore, the approach
adopted by the Central Drug Authority of South Africa together
with
the comparative medical evidence set out above have to be taken into
account in formulating a conclusion as to whether [the State]
[has] discharged the burden placed upon them”.
[9]
Professor Shaw and his team were asked by the High Court to assist
the Court and they submitted a report to the Court dealing
with
various aspects of cannabis. Professor Shaw is a professor of
criminology at the University of Cape Town.
[30] It was pointed
out in the judgment of the High Court that the State’s evidence
was “singularly unimpressive, particularly
in that a
considerable period of time was offered to [the State] in order to
respond comprehensively to the Shaw report”.
The Court
continued: “All that was forthcoming was a further affidavit by
Captain Smit, and an affidavit by a general practitioner,
whose
expertise is surely open to doubt in this specific area and who made
a number of unsubstantiated claims. On its own
this was a
disappointing answer to the persuasive arguments made by
Professor Shaw
et al
.”
[10]
[31] There was also
reference in the High Court judgment to the evidence in an affidavit
by Mr William Hofmeyr who is
Deputy National Director of
Public Prosecutions. Based on Mr Hofmeyr’s
affidavit, the High Court stated:
“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”.
[11]
The High Court went
on to say:
“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”.
[12]
[32] According to
the High Court both sections 4 and 5 of the Drugs Act needed to be
amended to ensure that they did not apply to
persons “who use
small quantities of cannabis for personal consumption in the privacy
of a home as the present position unjustifiably
limits the right to
privacy”.
[13]
The Court stated that it is Parliament that should determine the
extent of what would constitute small quantities in private
dwellings.
[14]
[33]
Even if it could be shown, said the High Court, that there was “a
legitimacy to the objectives of the limitation and further
that this
legitimate objective is rationally connected to the means employed by
way of the impugned legislation, this is not sufficient
to prove a
justification required in terms of section 36(1) of the
Constitution”.
[15]
The High Court took the view that, even if it could be said 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 State would still need to “show why a
less restrictive means to achieve that purpose
does not exist”.
[16]
It went on to say:
“In other words, even if the Court finds that the evidence of
Prof Shaw et al, the further evidence cited in their report,
including the views of the Central Drug Authority of South Africa,
does not carry sufficient evidential weight, if the respondents
wish
to restrict so important a right as a private act of consuming
cannabis in the intimacy of a home, they should attempt to
employ
means of doing so which are the least restrictive of the rights being
infringed. The limitation should in other words
be narrowly
tailored to achieve its purpose, should be carefully focused, and
should not be overbroad.”
[17]
The High Court then
quoted the dissenting judgment of LeBel J in
R v Malmo Levine
[18]
.
[34] In the end the
High Court concluded:
“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.”
[19]
Later on, the Judge
in the High Court explained his judgment in these terms:
“The point of this judgment is that there are a multitude of
options available to fight this problem as opposed to the blunt
use
of the criminal law. It is precisely for this reason that this
Court contends that less restrictive means must be employed
to deal
with the problem, a conclusion clearly advocated in the positon
articulated by the Central Drug Authority cited earlier.”
[20]
He also said:
“The evidence, holistically read together with the arguments
presented to this Court, suggests that the blunt instrument
of the
criminal law employed in the impugned legislation is disproportionate
to the harms that the legislation seeks to curb in
so far as the
personal use and consumption of cannabis are concerned. This
conclusion is supported by the importance of the
core component of
the right to privacy, and, further, by the cautious approach that
must be taken to the evaluation of the criminalisation
of cannabis
which, as indicated earlier in this judgment, is certainly
characterised by the racist footprints of a disgraceful
past.”
[21]
[35] The High Court
held that “it would be practical and objectively possible for
legislation to distinguish the use of cannabis
and the possession,
purchase or cultivation of cannabis for personal consumption from
other uses”.
[22]
It held that it was not for the court “to prescribe
alternatives to decriminalisation of the use of cannabis for personal
use and consumption. It is for the legislature and the
executive to decide on a suitable option or alternatives which can
be
made after these have been the subject of a deliberative process
which is inherent in the idea of Parliament.”
[23]
[36] The High Court
drew attention to the fact that the Convention Against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances
of 1988
[24]
(1988 Convention) “establishes a fundamental distinction
between the ‘possession, purchase or cultivation of narcotic
drugs or psychotropic substances for personal consumption’
(article 3(2)) and trafficking and dealing conduct (article 3(1)),
conduct which is described as ‘serious’. This
distinction is reflected in the differential regulation in the
Drugs
Act for possession for personal use (section 4) and dealing (section
5)”.
[25]
The High Court went on to say in this regard:
“The Drugs Act recognises, for example, that when it comes to
possession for purposes of personal use, smaller quantities
are
involved. Hence, the Act created a presumption that a person
found in possession of cannabis exceeding the prescribed
mass was
presumed to be dealing. Section 21(1)(a)(i) of the Drugs Act
had a presumption that a person possessing more than
115 grams of
cannabis is dealing. The provision has, however as noted, been
declared unconstitutional in
S v Bhulwana; S v Gwadiso
[1995] ZACC 11
;
1996 (1) SA 388
(CC). The quantity of cannabis in a person’s
possession constitutes an objective, established and readily
enforceable
basis upon which to distinguish possession for personal
consumption from dealing or other, more serious conduct.
Whether
the existing prescribed quantity should remain applicable in
the light of the finding of this Court is for the legislature to
determine,
hence any reading in of words into the Drugs Act is not an
appropriate approach in this case. If follows, unlike the
majority
in Prince 2, who were dealing with a regime, that I find
that it would be practical and objectively possible for legislation
to
distinguish the use of cannabis and the possession, purchase or
cultivation of cannabis for personal consumption from other
uses.”
[26]
[37] The Court
concluded that the State respondents had failed to show that the
limitation was reasonable and justifiable in an
open and democratic
society as required by section 36 of the Constitution. That
conclusion meant that the impugned provisions
were inconsistent with
the Constitution to the extent indicated in the judgment and were,
therefore, constitutionally invalid.
[38] In the result,
the High Court made the order quoted earlier in this judgment.
In this Court
[39] In confirmatory
proceedings this Court is required to satisfy itself whether the High
Court was correct in declaring invalid
the statutory provisions that
it declared invalid. If this Court is satisfied that the
statutory provisions were correctly
declared invalid, it confirms the
order of invalidity made by the High Court. If, however, this
Court concludes that the
High Court erred in holding the impugned
provisions inconsistent with the Constitution and in declaring them
invalid, it does not
confirm the order. Where this Court does
not confirm an order of invalidity made by a High Court, the
statutory provisions
in question continue in operation.
[40] The issue for
determination by this Court is, therefore, whether the impugned
provisions limit the right to privacy as held
by the High Court and,
if they do, whether that limitation is reasonable and justifiable in
an open and democratic society based
on human dignity, equality and
freedom taking into account the factors listed in section 36(1)
of the Constitution.
If the limitation is reasonable and
justifiable, this will mean that the impugned provisions are
consistent with the Constitution
and are, therefore, valid. In
such a case this Court will not confirm the High Court’s order
of invalidity. If,
however, the limitation is held not to be
reasonable and justifiable in an open and democratic society as
contemplated in section
36, this will mean that the impugned
provisions are inconsistent with the Constitution and are, therefore,
invalid to the extent
of that inconsistency.
[41] The applicants
and plaintiffs before the High Court are respondents before us.
For convenience, I shall refer to them
as applicants when I need to
refer to them collectively. Those who were respondents before
the High Court are applicants
before this Court. For
convenience, I shall refer to them collectively as the State.
There are other parties who featured
in the proceedings before us who
did not feature in the High Court. Those are the organisations
and individuals who applied
either for admission as amicus curiae
(friends of the court) or as intervening parties. I have
already dealt with them above.
[42] Earlier on, I
quoted the impugned provisions. I do not propose to quote them
again. Since the order of invalidity
made by the High Court was
made on the basis that the impugned provisions constituted an
infringement of the right to privacy,
it is appropriate to make a few
observations about the scope and content of the right to privacy.
Scope and content
of the right to privacy
[43] In our law the
right to privacy is entrenched in section 14 of the Constitution.
Section 14 reads:
“14. Privacy – Everyone has the right to privacy which
includes the right not to have—
(a)
their person or home searched;
(b)
their property searched;
(c)
their possessions seized; or
(d)
the privacy of their communications infringed.”
[27]
[44] In
Bernstein
[28]
this Court undertook an extensive discussion of the right to
privacy. Ackermann J said:
“Use of this term [namely, the right to privacy] has not been
unproblematic, since in terms of a resolution of the Consultative
Assembly of the Council of Europe this right has been defined as
follows:
‘The
right to privacy consists essentially in the right to live one’s
own life with a minimum of interference. It
concerns private,
family and home life, physical and moral integrity, honour and
reputation, avoidance of being placed in a false
light,
non-revelation of irrelevant and embarrassing facts, unauthorised
publication of private photographs, protection from disclosure
of
information given or received by the individual confidentially.’”
[29]
[45] Ackermann J
also referred to the approach of Canadian courts. He pointed
out that the Canadian Charter of Rights and
Freedoms does not
specifically provide for the protection of personal privacy. He
then stated:
“As in the United States, the issue arises in connection with
the protection of persons against unreasonable search and seizure,
which in Canada is afforded by section 8 of the Charter. In defining
the scope of this protection the Canadian Courts have adopted
an
approach similar to that followed in United States jurisprudence. In
McKinley Transport Ltd et al v The Queen
Wilson J quoted with
approval the following exposition of Dickson J in
Hunter et al v
Southam Inc
:
‘The
guarantee of security from
unreasonable
search and seizure
only protects a
reasonable
expectation. This limitation
on the right guaranteed by section 8, whether it is expressed
negatively as freedom from "unreasonable"
search or
seizure, or positively as an entitlement to a "reasonable"
expectation of privacy, indicates that an assessment
must be made as
to whether in a particular situation the public's interest to be left
alone by government must give way to government's
interest in
intruding on the individual's privacy in order to advance its goals,
notably those of law enforcement.’”
[30]
With the last part
of this excerpt in mind, it can legitimately be said that the right
to privacy is a right to be left alone.
[46] Ackermann J
went on to say:
“Wilson J pointed out that one of the purposes underlying the
section 8 right is the ‘protection of the individual's
reasonable expectation of privacy’. Since an enquiry into
privacy constitutes an important component in determining
the scope
of an unreasonable search or seizure, the Courts have had to develop
a test to determine the scope and content of the
right to privacy.
The ‘reasonable expectation of privacy’ test
comprises two questions. First, there must
at least be a
subjective expectation of privacy and, secondly, the expectation must
be recognised as reasonable by society.”
[31]
[47] Ackermann J
referred to the approach of the United States Courts in determining
the existence of “a reasonable expectation
of privacy”.
Ackermann J then said:
“The question corresponding to determining the ‘scope of
the right to privacy’ in United States’ constitutional
inquiry, is whether a search or seizure has occurred. The US
Supreme Court has defined ‘search’ to mean a
‘governmental
invasion of a person's privacy’ and it has
constructed a two part test to determine whether such an invasion has
occurred.
The party seeking suppression of the evidence must
establish both that he or she has a
subjective expectation
of
privacy and that the society has recognised that expectation as
objectively reasonable
. In determining whether the
individual has lost his / her legitimate expectation of privacy, the
Court will consider such
factors as whether the item was exposed to
the public, abandoned, or obtained by consent. It must of
course be remembered
that the American constitutional interpretative
approach poses only a single inquiry, and does not follow the two
stage approach
of Canada and South Africa. Nevertheless it
seems to be a sensible approach to say that the scope of a person's
privacy extends
a fortiori
only to those aspects in regard to
which a legitimate expectation of privacy can be harboured.”
[32]
[48] In
Bernstein
this Court also had this to say about the right to privacy:
“A very high level of protection is given to the individual’s
intimate personal sphere of life and the maintenance
of its basic
preconditions and there is a final untouchable sphere of human
freedom that is beyond interference from any public
authority.
So much so that, in regard to this most intimate core of privacy, no
justifiable limitation thereof can take place.
But this most
intimate core is narrowly construed. This inviolable core is
left behind once an individual enters into relationships
with persons
outside this closest intimate sphere; the individual’s
activities then acquire a social dimension and the right
of privacy
in this context becomes subject to limitation.”
[33]
[49] In
National
Coalition
[34]
this Court elaborated on the right to privacy in these terms:
“This Court has considered the right to privacy entrenched in
our Constitution on several occasions. In
Bernstein v
Bester
, it was said that rights should not be construed
absolutely or individualistically in ways which denied that all
individuals are
members of a broader community and are defined in
significant ways by that membership:
‘In
the context of privacy this would mean that it is only the inner
sanctum of a person, such as his/her family life, sexual
preference
and home environment, which is shielded from erosion by conflicting
rights of the community . . . Privacy is acknowledged
in the truly
personal realm, but as a person moves into communal relations and
activities such as business and social interaction,
the scope of
personal space shrinks accordingly.’”
[35]
[50] In
Khumalo
[36]
O’Regan J had occasion to say something about the relationship
between the right to privacy and the right to human dignity.
She said:
“It should also be noted that there is a close link between
human dignity and privacy in our constitutional order. The
right to privacy, entrenched in section 14 of the Constitution,
recognises that human beings have a right to a sphere of intimacy
and
autonomy that should be protected from invasion. This right
serves to foster human dignity. No sharp lines then
can be
drawn between reputation,
dignitas
and privacy in giving
effect to the value of human dignity in our Constitution.”
[37]
[51] The case which
is before us as decided by the High Court is whether the prohibition
by the impugned provisions of the mere
possession, use or cultivation
of cannabis by an adult in private for his or her personal
consumption in private is inconsistent
with the right to privacy
provided for in section 14 of the Constitution and, therefore,
invalid.
[52] In
Case
[38]
the matter concerned the possession of material that was said to be
hit by the Indecent or Obscene Photographic Matter Act.
[39]
Didcott J pointed out that all that that Act dealt with in its penal
provisions was “the possession of material which
it call[ed]
‘indecent or obscene photographic matter’” and
nothing else. With the concurrence of the majority,
Didcott J
then had this to say about the right to privacy in the context of the
case:
“What erotic material I may choose to keep within the privacy
of my home, and only for my personal use there, is nobody's
business
but mine. It is certainly not the business of society or the
State. Any ban imposed on my possession of such
material for
that solitary purpose invades the personal privacy which section 13
of the interim Constitution (Act 200 of 1993)
guarantees that I shall
enjoy.”
[40]
[53] With the
concurrence of Didcott J and the majority in
Case
, in his
separate judgment in the same case Langa J qualified this excerpt
from Didcott J’s judgment. He said:
“My understanding is that this statement is subject to the
qualification that the right referred to, as is the case with
other
Chapter 3 rights, is not necessarily exempt from limitation. That
the limitation may extend to possession even in the
privacy of one's
home in certain circumstances is a possibility acknowledged by
Didcott J in paragraph [93]. The precise
circumstances are not
a matter we are called upon to delineate here and I agree that it is
wise to refrain from attempting to do
so in this matter. What
is clear is that an intrusion into such privacy cannot, as was the
case in the past, be permissible
unless it can be adequately
justified on the basis of section 33(1) of the Constitution.”
[41]
That was section
33(1) of the interim Constitution which is now catered for in
section 36 of the final Constitution.
[54] There are cases
elsewhere where statements along the lines of Didcott J’s
statement are to be found. In
Stanley
[42]
the Supreme Court of Georgia had to consider the question whether “a
statute imposing criminal sanctions upon the mere (knowing)
possession of obscene matter”
[43]
was constitutional. The Court stated that the rights which Mr
Stanley was asserting included the right that Brandeis J called
in
his dissent in
Olmstead v United States
[44]
,
“the right to be let alone”. In
Stanley
the
Court said that Stanley was asserting—
“the right to satisfy his intellectual and emotional needs in
the privacy of his own home. He is asserting the right
to be
free from state inquiry into the contents of his library. Georgia
contends that the appellant does not have these rights,
that there
are certain types of materials that the individual may not read or
even possess. Georgia justifies this assertion
by arguing that
the films in the present case are obscene. But we think that
mere categorization of these films as ‘obscene’
is
insufficient justification for such a drastic invasion of personal
liberties guaranteed by the First and Fourteenth Amendments.
Whatever may be the justifications for other statutes
regulating obscenity, we do not think they reach into the privacy of
one's own home.
If the First Amendment means anything, it means
that a State has no business telling a man, sitting alone in his own
house, what
books he may read or what films he may watch.
Our
whole constitutional heritage rebels at the thought of giving
government the power to control men's minds.”
[45]
Later, the Court
said: “we hold that the First and Fourteenth Amendments
prohibit making mere private possession of obscene
material a
crime”.
[46]
[55] In
Ravin v
State of Alaska
[47]
the Supreme Court of Alaska had to consider the constitutionality of
Alaska’s statute prohibiting possession of marijuana.
Ravin had been arrested and charged with violating AS 17.12.010.
In the trial Ravin challenged the constitutionality of AS
17.12.010
on the basis that it violated his right to privacy under both the
federal and Alaska constitutions. In that case
Rabinowitz CJ
said:
“It is appropriate in this case to resolve Ravin’s
privacy claims by determining whether there is a proper governmental
interest in imposing restrictions on marijuana use and whether the
means chosen bear a substantial relationship to the legislative
purpose. If governmental restrictions interfere with the
individual’s right to privacy, we will require that the
relationship
between means and ends be not merely reasonable but
close and substantial.”
[48]
The Chief Justice
went on to say:
“Thus, our undertaking is two-fold: we must first determine the
nature of Ravin's rights, if any, abridged by AS 17.12.010,
and, if
any rights have been infringed upon, then resolve the further
question as to whether the statutory impingement is justified.”
[49]
[56] After a
discussion of the special place that a home enjoys in the protection
of certain rights in Alaska’s constitution,
Rabinowitz CJ said:
“Thus, we conclude that citizens of the State of Alaska have a
basic right to privacy in their homes under Alaska’s
constitution. This right to privacy would encompass the
possession and ingestion of substances such as marijuana in a purely
personal, non-commercial context in the home unless the state can
meet its substantial burden and show that proscription of possession
of marijuana in the home is supportable by achievement of a
legitimate state interest.”
[50]
[57] The Chief
Justice later said:
“Further, neither the federal nor Alaska constitution affords
protection for the buying or selling of marijuana, nor absolute
protection for its use or possession in public. Possession at
home of amounts of marijuana indicative of intent to sell rather
than
possession for personal use is likewise unprotected.”
[51]
Against the above
discussion of the scope and content of the right to privacy, it is
now necessary to consider whether the impugned
provisions limit that
right.
Do the impugned
provisions limit the right to privacy?
[58] It seems to me
that, with changes dictated by the context, what Didcott J said in
the excerpt quoted earlier from
Case
as qualified by Langa J
in the same case applies with equal force to the case of the
possession, cultivation and use of cannabis
by an adult in private
for his or her personal consumption in private and in the absence of
children. What this means is
that the right to privacy entitles
an adult person to use or cultivate or possess cannabis in private
for his or her personal consumption.
Therefore, to the extent
that the impugned provisions criminalise such cultivation, possession
or use of cannabis, they limit the
right to privacy. The High
Court pointed out that the State did not plead that the impugned
provisions did not limit the
right to privacy. During the
hearing, I did not understand counsel for the State to argue that the
impugned provisions did
not limit the right to privacy.
However, even if that was the State’s case, not much was said
in support of such a
contention. In my view, the High Court
correctly concluded that the impugned provisions limited the right to
privacy.
Is the limitation
reasonable and justifiable?
[59] Given the
conclusion that the impugned provisions limit the right to privacy,
the next question for consideration is whether
that limitation is
reasonable and justifiable in an open and democratic society based on
human dignity, equality and freedom as
required by section 36 of the
Constitution. In this regard, it is the State that must satisfy
the Court that the limitation
is reasonable and justifiable in an
open and democratic society.
[60] Section 36
requires that certain factors be taken into account in determining
whether the limitation of a right entrenched
in the Bill of Rights is
reasonable and justifiable in an open and democratic society based on
human dignity, equality and freedom.
These are—
(a) the nature of the 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.
This list is not
exhaustive as, ultimately, the question is whether the limitation is
reasonable and justifiable in an open and
democratic society based on
human dignity, equality and freedom. The impugned provisions
must be part of a law of general
application. In the present
case, that this is the position is not in dispute.
[61] The
justification analysis required by section 36(1) need not be dealt
with on the basis of a check list approach. The
High Court
relied on a report prepared by Professor Shaw
et al
in regard
to the justification analysis. It did not put much weight on
affidavits deposed to by Dr Gous and Dr Naidoo who
put up affidavits
in support of the State’s case.
The nature of the
right to privacy
[62] The discussion
of the right to privacy earlier in this judgment included a
discussion of the nature of that right. It
is, therefore, not
necessary to discuss the nature of the right to privacy again for the
purpose of the justification analysis
required by section 36(1) of
the Constitution.
The importance of
the purpose of the limitation
[63] Counsel for the
State argued that the purpose of the prohibition is the protection of
“the health, safety and psychological
well-being of persons
affected by the use of cannabis”. Counsel also pointed
out in the written submissions that in
Prince II
[52]
both the minority and the majority judgments accepted that “the
provisions serve an important governmental purpose in the
war against
drugs”. That is correct but it must also be borne in mind
that in
Prince II
what was in issue was not whether a
prohibition of the cultivation or possession or use of cannabis by an
adult in private for his
or her own personal consumption unreasonably
and unjustifiably limited the right to privacy. The question in
that case was
whether the prohibition of the use or possession of
cannabis when inspired by religion was constitutionally valid.
Counsel
for the State also pointed out that in
Prince II
the
majority said that “the prohibition against the possession and
use of cannabis was part of a worldwide attempt to curb
its
distribution of which the present government is fully supportive”.
[64] In
Prince II
Ngcobo J accepted that the goal of the impugned provisions was to
prevent the abuse of dependence-producing drugs and trafficking
in
those drugs. He also accepted that this was a legitimate
goal.
[53]
In
Prince II
the majority said that the legislation served an
important governmental purpose in the war against drugs.
[54]
Later, they said that “the general prohibition seeks to address
the harm caused by the drug problem by denying all
possession of
prohibited substances (other than for medical and research purposes)
and not by seeking to penalise only the harmful
use of such
substances”.
[55]
The majority also said: “South Africa has an international
obligation to curtail that trade”.
[56]
[65] In its
discussion of the importance of the purpose of the limitation, the
High Court,
inter alia,
referred to the fact that much of
the history of cannabis use in this country “is replete with
racism”. In this
regard the High Court quoted part of
what was said in
S v Nkosi.
[57]
In part the Court said in
S v Nkosi
:
“For example (1) it is also relevant to consider the traditions
and attitude of different groups of the population towards
the use of
a drug such as dagga; (2) it is general knowledge that some sections
of the [Black] population have been accustomed
for hundreds of years
to the use of dagga, both as an intoxicant and in the belief that it
has medicinal properties, and do not
regard it with the same moral
repugnance as do other sections of the population. Thus, in the
standard work, Watt and Breyer-Brandwijk,
The Medicinal and Poisonous
Plants of South Africa, at p. 35, on reads:
‘Cannabis
sativa 1., Cannabis indica, Indian hemp, hemp, hashish, ganjah,
dagga, Xhosa umya, Sutho matakwane, matokwane, matekwane,
mmoana, is
smoked as an intoxicant among South African natives. The
Fingoes use the leaves as a snake-bite remedy, and the
Xhosas as part
of the treatment of bots in horses. The ‘oil’ from
a dagga pipe has been used by European ‘cancer
curers’ as
an external application. In Southern Rhodesia, natives use the
plant, among others, as a remedy for malaria,
blackwater fever,
Blood-poisoning, anthrax and dysentery, and as a ‘war
medicine’. The Suthos administer the
ground-up seeds with
bread or mealiepap to children during weaning. Sutho women smoke
cannabis to stupefy themselves during childbirth
…’
In making these observations, we do not, of course, intend to
minimise the fact that the use of dagga is a great social evil in
South Africa. Nevertheless the long-standing indulgence in the
use of the substance by a group of which an accused person
belongs
may well constitute a circumstance to be taken into account in
mitigation at any rate where he has been convicted of the
use or
possession of a small quantity.”
[58]
Nature and extent
of the limitation
[66] The impugned
provisions criminalise, among others, the cultivation of cannabis in
private by an adult for his or her personal
consumption in private.
In
Prince II
this Court was split 5:4. In the minority
judgment it was said that the medical evidence in that case showed
that there was a level
of consumption of cannabis which was not
harmful but it was not known what that level was.
[59]
The impugned provisions also criminalise possession of cannabis by an
adult in private for his or her personal consumption.
This is
quite invasive.
The relation
between the limitation and its purpose and the less restrictive means
to achieve the purpose
[67] The State
relied on Dr Gous’ affidavit as its main answering affidavit to
justify the limitation. Dr Gous is a
pharmacist and the
Registrar of Medicines. She holds five degrees including a PhD
in pharmacology. In the State’s
answering affidavit, Dr
Gous made, among others, the following points:
(a) the psychoactive effects of cannabis, known as a “high”,
are subjective and can vary, based on the person and the
method of
use. Cannabis produces euphoria and relaxation, perceptual
alterations, time distortion and the intensification
of ordinary
sensory experiences, such as eating and listening to music.
When used in a social setting, it may produce infectious
laughter and
talkativeness. Short-term memory and attention, motor skills,
reaction time and skilled activities are impaired
while a person is
intoxicated.
(b) the most common unpleasant side-effects of occasional cannabis
use are anxiety and panic reactions.
(c) chronic heavy cannabis smoking is associated with increased
symptoms of chronic bronchitis, such as coughing, production of
sputum and wheezing. Lung function is significantly poorer and
there are significantly greater abnormalities in the large
airways of
marijuana smokers than in non-smokers.
(d) the short-term effects of cannabis use on the cardiovascular
system can include increased heart rate, dilation of blood vessels
and fluctuations in blood pressure. The cardiovascular effects
of cannabis are not associated with serious health problems
for most
young, healthy users. Cannabis use by older people,
particularly those with some degree or coronary artery or
cerebronvascular
disease, may pose greater risks.
(e) cannabis use in pregnancy is associated with restrictions in the
growth of the foetus, miscarriage and cognitive deficits in
offspring.
(f) although tobacco, alcohol and prescription drugs also have
harmful effects, research has shown beyond reasonable doubt
that their effects are far less than those of cannabis on the user.
(g) the harmful effects caused by cannabis are incomparable to food,
alcohol and tobacco. The harmful effects of cannabis
have been
well documented.
[68] In
Prince II
the medical evidence on record was dealt with by Ngcobo J in the
minority judgment in, among others, paragraphs 25, 26 and 61.
These paragraphs read:
“[25]
Medical evidence on record indicates
that cannabis is a hallucinogen. Although the medical experts
who deposed to affidavits
on the harmful effects of cannabis differed
in their emphasis, on their evidence it is common cause that: the
abuse of cannabis
is considered harmful because of its psychoactive
component, tetrahydrocannabinol (THC); the effects of cannabis are
cumulative
and dose-related; prolonged heavy use or less frequent use
of a more potent preparation is associated with different problems;
acute effects are experienced most quickly when it is smoked; present
clinical experience suggests that cannabis does not produce
physical
dependence or abstinence syndrome; and the excessive use of cannabis
will result in a hypermanic or other psychotic state.
However,
‘one joint of dagga, or even a few joints’ will not cause
harm.
[26]
The harmful effect of cannabis which the
prohibition seeks to prevent is the psychological dependence that it
has the potential
to produce. On the medical evidence on
record, there is no indication of the amount of cannabis that must be
consumed in
order to produce such harm. Nor is there any
evidence to indicate whether bathing in it or burning it as an
incense poses
the risk of harm that the prohibition seeks to
prevent. The medical evidence focused on the smoking of
cannabis and its harmful
effects
.
…
[61] On the medical evidence on record there can
be no question that uncontrolled consumption of cannabis, especially
when it is
consumed in large doses poses a risk of harm to the user.
An exemption that will allow such consumption of cannabis would
undermine the purpose of the prohibition.
However,
on the medical evidence on record it is equally clear that there is a
level of consumption that is safe in that it is unlikely
to pose any
risk of harm. The medical evidence on record is silent on what
that level of consumption is. Nor is there
any evidence
suggesting that it would be impossible to regulate the consumption of
cannabis by restricting its consumption to that
safe level. All
that the medical evidence on this record tells us is that the effects
of cannabis are dose-related and cumulative
and that while ‘prolonged
heavy use or less frequent use of a more potent preparation are
associated with many different
problems’, ‘one joint of
dagga or even a few joints’ will not cause any harm.
Without further information, it is not possible to
say whether or not the religious use of cannabis can be allowed
without undermining
the prohibition.”
[69] A report
published by the World Health Organisation (WHO) on the health and
social consequences of non-medical cannabis use
said this about the
adverse health and social consequences of cannabis use and alcohol
use:
“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. (Hall & Pacula, 2010; Degenhardt
& Hall,
2012). However, rates of recovery from cannabis dependence
among those seeking treatment are similar to those
treated for
alcohol dependence (Florez-Salamanca et al, 2013).”
[60]
The first sentence
in this passage of the WHO report contradicts a point made by Dr Gous
as recorded earlier that the harmful
effects caused by cannabis are
incomparable to those caused by tobacco. Dr Gous’ point
is also contradicted by a position
statement issued by the South
African Central Drug Authority which I will be quoting later in this
judgment.
[61]
[70] On treatment
trends, the WHO report said in part: “According to WHO data,
16% of countries included in the recent ATLAS
survey (Atlas 2015 in
press) reported cannabis use as the main reason for people seeking
substance abuse treatment. This
puts cannabis second only to
alcohol as a reason for treatment entry”.
[62]
Again here, the WHO report suggests that alcohol is more harmful than
cannabis use. The report had this to say about
the risk posed
by the use of cannabis to traffic injury:
“The existing evidence points to a small impact of cannabis on
traffic injury. There are plausible biological pathways,
and
the pooling of studies found significant effects for cannabis.
Overall, even though the effect is small compared to the
effects of alcohol, traffic-injury may be the most important adverse
public health outcome for cannabis in terms of mortality in
high-income countries.”
[63]
The WHO report also
states that “[t]he existing case reports raise a suspicion, but
provide limited support for the hypothesis
that cannabis use can
cause upper respiratory tract cancers.”
[64]
[71] In
Stanley
the Supreme Court of Georgia held that “the mere private
possession of obscene matter cannot constitutionally be made a
crime”.
[65]
The Court said that: “in the context of this case a
prosecution for mere possession of printed or filmed matter
in the
privacy of a person’s own home that right takes on an
added dimension. For also fundamental is the right
to be free,
except in very limited circumstances, from unwanted governmental
intrusions into one’s privacy.”
[66]
In his dissent in
Olmstead
Brandeis J said:
“The makers of our Constitution undertook to secure conditions
favourable to the pursuit of happiness . . . They sought to
protect
Americans in their beliefs, their thoughts, their emotions and their
sensations.
They conferred, as against the government, the
right to be let alone – the most comprehensive of rights and
the right most
valued by civilized man
.”
[67]
[72] In
Ravin
the Supreme Court of Alaska also said:
“Thus we conclude that no adequate justification for the
state’s intrusion into the citizen’s right to privacy
by
its prohibition of possession of marijuana by an adult for personal
consumption in the home has been shown. The privacy
of the
individual’s home cannot be breached absent a persuasive
showing of a close and substantial relationship of the intrusion
to a
legitimate governmental interest.”
[68]
[73] The Supreme
Court of Alaska also pointed out in
Ravin
that the National
Commission on Marihuana and Drug Abuse had recommended that private
possession for personal use no longer continue
to be an offence.
[69]
It is interesting to note that, as stated by the High Court in the
present case, in this country, too, the Drug Authority
expressed the
view in its position statement in 2016 that possession of small
amounts of cannabis for personal consumption in one’s
home
should be decriminalised. The relevant part of that position
statement is quoted later in this judgment.
[70]
[74] In
Ravin
the Supreme Court of Alaska referred to the belief that marijuana use
directly causes criminal behaviour and particularly violent
and
aggressive behaviour. It pointed out that the experts in that
case were generally agreed that this belief was not valid.
[71]
In the present case, too, there is no cogent evidence supporting the
notion that the use of cannabis causes criminal behaviour
or leads
its users to behaving violently or aggressively. In
Ravin
the Supreme Court of Alaska said: “[T]he [National] Commission
[on Marihuana and Drug Abuse] and most other authorities agree
that
there is little validity to the theory that marijuana use leads to
use of more potent and dangerous drugs. Although
it has been
stated that the more heavily a user smokes marijuana, the greater the
probability that he has used or will use other
drugs, it has been
suggested that such use is related to drug use proneness and
involvement in drug subcultures rather than to
the characteristics of
cannabis,
per se
.”
[72]
[75] The Supreme
Court of Alaska continued:
“We glean from these cases the general proposition that the
authority of the state to exert control over the individual extends
only to activities of the individual which affect others or the
public at large as it relates to matters of public health or safety
or to provide for the general welfare. We believe this tenet to
be basic to the free society. The state cannot impose
its own
notions of morality, propriety, or fashion on individuals when the
public has no legitimate interest in the affairs of
those
individuals. The right of the individual to do as he pleases is
not absolute, of course: It can be made to yield when
it …
infringe[s] on the rights and welfare of others.”
[73]
[76] Referring to
the effect of the impugned provisions in
Prince II,
Ngcobo J
said:
“The net they cast is so wide that uses that pose no risk of
harm and that can effectively be regulated and subjected to
government control, like other dangerous drugs, are hit by the
prohibition. On that score they are unreasonable and they
fall
at the first hurdle. This renders it unnecessary to consider
whether they are justifiable.”
[74]
[77] In the next
paragraph Ngcobo J said:
“It follows, therefore, that the prohibition contained in the
impugned provisions is constitutionally bad because it proscribes
the
religious use of cannabis even when such use does not threaten
government interest.”
[75]
[78] The High
Court’s conclusion that the limitation was not reasonable and
justifiable was based on, amongst others, the
position taken by the
South African Central Drug Authority as reflected in its position
statement issued in 2016 in the South African
Medical Journal.
[76]
In that statement the South African Central Drug Authority
said:
“The national drug master plan emphasises the importance of an
integrated approach to supply reduction, demand reduction
and harm
reduction strategies for combatting alcohol, tobacco, cannabis and
other psychoactive substance use and abuse in SA.
For any
particular substance the balance between these three strategies and
the precise nature of the approach should be evidence
based.
An assessment of currently available data in other countries
indicates that alcohol is the substance that causes the most
individual
and societal harm and is therefore key to put particular
efforts into implementing the most evidence based policies and
interventions
for combatting such harm. This would encompass
addressing a range of upstream drivers of alcohol use as well as
prevention and
intervention efforts.
Efforts at harm reduction have been particularly poorly resourced in
South Africa and given the enormous profits made by the liquor
industry there is a need and obligation for this industry to be
substantially more involved in evidence based harm reduction efforts.
In terms of cannabis, local schools survey data suggests high rates
of experimentation during early adolescence; hence evidence
based
interventions that include a strong focus on harm reduction are also
needed in this population which comprises a large proportion
of South
Africans.
There are few data to indicate that supply reduction via
criminalisation is effective in reducing cannabis abuse. At the
same
time there are insufficient data to indicate that the
legalisation of cannabis would not be harmful. The immediate
focus
should therefore be decriminalisation rather than legalisation.
With regard to medical marijuana products based on the ingredients of
the cannabis plants should undergo standard evaluation by
the
Medicines Control Council to assess their benefits and risks with
treatment of particular medical conditions.”
[77]
.
Two points made in
this statement need to be emphasised. The first is that the
South African Central Drug Authority said that
an assessment of
available data in other countries indicates,
inter alia,
that,
among alcohol, tobacco and cannabis “alcohol causes the most
individual and social harm …”. The
second point is
that the immediate focus should be on decriminalisation.
[79] The High
Court’s conclusion was also influenced by, among others, the
fact that there are many democratic societies based
on freedom,
equality and human dignity that have either legalised or
decriminalised possession of cannabis in small quantities
for
personal consumption.
[78]
These are reflected in an addendum to this judgment. The addendum has
the name of the jurisdiction, the legislation involved
and the year
in which the decriminalisation or legalisation, as the case may be,
occurred. The addendum reflects 33 jurisdictions.
They
include:
(a) Austria where decriminalisation or legalisation occurred in 2016
through the Narcotic Substances Act SMG - Suchtmittelgesetz
of 1998;
(b) Capital territory in Australia where decriminalisation or
legalisation took place in 1992 through the Drugs of Dependence Act
1989;
(c) Northern territory in Australia where decriminalisation or
legalisation occurred in 1996 through the Drugs of Dependence Act
1990;
(d) Canada where legalisation or decriminalisation occurred in 2018;
(e) Chile where decriminalisation or legalisation occurred in 2007
through law 20 000.00;
(f) Czech Republic where decriminalisation or legalisation occurred
in 2010 through Government decree 467/2009;
(g) Portugal where decriminalisation or legalisation occurred in 2000
through Law 30/2000 - Art 2;
(h) Switzerland where decriminalisation or legalisation occurred in
2013 through The Federal Narcotics and Psychotropic Substances
Act
(BetmG; SR 812.121) of 1951;
(i) California where legalisation occurred in 2016;
(j) Uruguay where legalisation occurred in 2013;
(k) Spain where decriminalisation or legalisation occurred in 2015
through Law 1/1992, Art 25-28; and
(l) New York where legalisation or decriminalisation took place in
2014.
[80] In the
jurisdictions referred to above and in others included in the
addendum, different amounts have been fixed as “small
amounts”.
In the present case, like the Judge in the High Court, I would leave
the determination of the amount to Parliament.
[81] In
Prince II
this Court,
inter alia
, said that the harmful effect of
cannabis which the prohibition sought to prevent was the
psychological dependence that cannabis
has the potential to
produce.
[79]
This Court pointed out that on the medical evidence on record in that
case there was no indication of the amount of cannabis
that must be
consumed in order to produce such harm.
[80]
In
Prince II
this Court also stated that on the medical
evidence on record in that case there could be no question that
uncontrolled consumption
of cannabis, especially when consumed in
large doses posed a risk of harm to the user.
[81]
However, in the minority judgment in
Prince II
, Ngcobo J
pointed out that on the medical evidence on record it was “equally
clear that there is a level of consumption [of
cannabis] that is safe
in that it is unlikely to pose any risk of harm. The medical
evidence on record is silent on what
that level of consumption is.
Nor is there any evidence suggesting that it would be impossible to
regulate the consumption
of cannabis by restricting its consumption
to that safe level. All that the medical evidence on record
tells us is that .
. . while ‘prolonged heavy use or less
frequent use of a more potent preparation are associated with many
different problems’,
‘one joint of dagga or even a few
joints’ will not cause any harm.”
[82]
[82] Counsel for the
State referred to various international agreements to which South
Africa is a signatory and submitted that
South Africa is obliged to
give effect to these international agreements. The answer to
the submission is that South Africa’s
international obligations
are subject to South Africa’s constitutional obligations.
The Constitution is the supreme
law of the Republic and, in entering
into international agreements, South Africa must ensure that its
obligations in terms of those
agreements are not in breach of its
constitutional obligations. This Court cannot be precluded by
an international agreement
to which South Africa may be a signatory
from declaring a statutory provision to be inconsistent with the
Constitution. Of
course, it is correct that, in interpreting
legislation, an interpretation that allows South Africa to comply
with its international
obligations would be preferred to one that
does not, provided this does not strain the language of the statutory
provision.
Before I conclude the justification analysis
required by section 36 of the Constitution, it is necessary to deal
with a few issues.
These are section 5(b) of the Drugs Act,
“purchasing” of cannabis, section 22A(10) of the Medicine
Act, section 40(1)(h)
of the Criminal Procedure Act
[83]
as well as the application for leave to cross-appeal.
Section 5(b) of
the Drugs Act
[83] One of the
sections referred to in the order of the High Court as a section that
contains provisions declared by that Court
as constitutionally
invalid was section 5(b) of the Drugs Act. That provision
prohibits anyone from dealing in any dangerous
dependence producing
substance or any undesirable dependence–producing substance.
Those include cannabis. The
order of the High Court said in
effect that the provisions of section 5(b) of the Drugs Act were
“declared inconsistent with
the Constitution of the Republic of
South Africa Act 108 of 1996 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
…” In its
judgment, the High Court did not anywhere discuss dealing in cannabis
nor did it discuss the activity
of cultivation of cannabis.
Even in paragraph 2 of its judgment where the High Court stated what
the case was about, it did
not refer to the issue of dealing in
cannabis or the cultivation of cannabis.
[84] The High Court
did not give any reasons why section 5(b) could not be said to
constitute a reasonable and justifiable limitation
of the right to
privacy. However, the definition of the phrase “deal in”
in section 1 of the Drugs Act throws
light on why the High Court may
have declared section 5(b) constitutionally invalid to the extent
that it declared it. The
definition of the phrase “deal
in” provides in part that dealing in includes, in relation to
drug, “the performance
of any activity in connection with”
the “cultivation…” of a dangerous dependence
producing substance or
an undesirable dependence producing
substance. When section 5(b) is read with the definition of the
phrase “deal in”
in section 1 of the Drugs Act, one of
its effects is that the performance of any activity in connection
with the cultivation by
an adult of cannabis in a private place for
his or her personal consumption in private is criminalised.
[85] The issue of
the cultivation of cannabis in private by an adult for personal
consumption in private should not be dealt with
on the basis that the
cultivation must be in a dwelling or private dwelling. It
should be dealt with simply on the basis
that the cultivation of
cannabis by an adult must be in a private place and the cannabis so
cultivated must be for that adult person’s
personal consumption
in private. An example of cultivation of cannabis in a private
place is the garden of one’s residence.
It may or may not
be that it can also be grown inside an enclosure or a room under
certain circumstances. It may also be
that one may cultivate it
in a place other than in one’s garden if that place can be said
to be a private place.
[86] I am of the
view that the prohibition of the performance of any activity in
connection with the cultivation 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 reasons for this conclusion are
the same as those given in this judgment
as to why the prohibition of
the use or possession of cannabis by an adult in private for his or
her personal consumption in private
is inconsistent with the right to
privacy and, therefore, invalid. Therefore, to that extent,
section 5(b) read with the
definition of the phrase “deal in”
in section 1 of the Drugs Act is constitutionally invalid.
“
Purchase”
[87] It will have
been seen from the order of the High Court that the provisions that
were declared inconsistent with the Constitution
included provisions
that prohibited the purchase of cannabis. At this stage it is
necessary to deal with the issue of whether
the order of the High
Court should be confirmed in so far as it relates to provisions of
the sections referred to therein that
were said to prohibit the
“purchase” of cannabis.
[88] Although the
provisions that the order of the High Court invalidated included
provisions that prohibit the purchase of cannabis,
in its judgment
the High Court did not anywhere advance reasons why those provisions
could not be said to constitute a reasonable
and justifiable
limitation of the right to privacy. A purchaser of cannabis
would be purchasing it from a dealer in cannabis.
Therefore, if
this Court were to confirm the order declaring invalid provisions
that prohibit the purchase of cannabis, it would,
in effect, be
sanctioning dealing in cannabis. This the Court cannot do.
Dealing in cannabis is a serious problem in
this country and the
prohibition of dealing in cannabis is a justifiable limitation of the
right to privacy. I will, therefore,
not confirm that part of
the order of the High Court because we have no intention of
decriminalising dealing in cannabis.
Section 22A(10)
[89] Section 22A(10)
is also another section that was referred to in the order of the High
Court. The order of the High Court
declared section 22A(10)
inconsistent with the Constitution and, therefore, constitutionally
invalid to the extent that it prohibits
the use, possession, purchase
or cultivation of in effect cannabis by an adult in a private
dwelling for personal consumption.
Section 22A(10) has been
quoted above. It does not anywhere refer to the use,
possession, purchase or cultivation.
It prohibits the sale and
administration of, among others, cannabis for any purpose other than
medicinal purposes unless one of
the exceptions given in the
provision applies. In the order of the High Court there is
no reference to the sale or administration
of cannabis. There
is mention of purchase but purchase is mentioned elsewhere as well.
[90] Since there is
no reference in the order of the High Court to any activity
prohibited by section 22A(10) nor are there reasons
in the judgment
of the High Court why section 22A(10) was declared constitutionally
invalid, I propose not to confirm the part
of the order of the High
Court that relates to it. In any event, no case relating to the
administration of cannabis seems
to have been made out in Mr Prince’s
affidavit in the High Court.
Section 40(1)(h)
of the Criminal Procedure Act
[91] It is necessary
to deal with section 40(1)(h) of the Criminal Procedure Act. It
reads:
“40. Arrest by peace officer without warrant
(1) A peace officer may without warrant arrest any person-
…
(h)
who is reasonably suspected of committing or of having committed an
offence under any law governing the making, supply, possession
or
conveyance of intoxicating liquor or of dependence-producing drugs or
the possession or disposal of arms or ammunition.”
[92] This provision
was not one of the provisions that the High Court declared in its
order to be inconsistent with the Constitution
to the extent
indicated in its order. However, it was one of the provisions
that the applicants in that Court sought to have
declared
constitutionally invalid. There is nothing in the judgment of
the High Court that indicates why the High Court decided
not to
declare section 40(1)(h) constitutionally invalid.
[93] Section
40(1)(h) simply confers power on a peace officer to arrest without a
warrant any person who is reasonably suspected
of committing or
having committed an offence under any law governing, for example, the
“possession or conveyance. . .of dependence-producing
drugs.”
One of the effects of this judgment is that it is no longer a
criminal offence for an adult to use or be in
possession of cannabis
in private for his or her own personal consumption in private.
That means that, after the handing
down of this judgment, there will
be no law governing possession of cannabis by an adult in private for
his or her own personal
consumption in private that makes such
possession a criminal offence. If that conduct will no longer
be a criminal offence,
there can be no basis for a peace officer to
reasonably suspect an adult in that situation to be committing or to
have committed
an offence by being in possession of cannabis.
There is therefore no need for this provision to be declared
constitutionally
invalid.
[94] It seems to me
that, when all of the above is taken into account including the
increasing number of open and democratic societies
in which
possession of cannabis for personal use has either been legalised or
decriminalised and the inadequate evidence put up
by the State, the
conclusion is inevitable that the State has failed to show that the
limitation is reasonable and justifiable
in an open and democratic
society based on human dignity, equality and freedom.
Application for
leave to cross-appeal: Limitation of case to right to privacy
[95] The High Court
decided this matter solely on the basis of the right to privacy.
Mr Prince criticised this. He submitted
that it should have
based its conclusion on the infringement of other rights as well on
which he said that he and his co-respondents
(co-applicants or
plaintiffs in the High Court) had relied. For this reason they
sought leave to cross-appeal against the
High Court’s failure
to declare that the impugned provisions are also invalid in the light
of those other rights. The
other rights included the right to
equality, the right to human dignity and others. We were urged
to decide this matter on
the basis of the infringement of the other
rights as well.
[96] In my view, it
is not in the interests of justice that we go beyond the right to
privacy in deciding this matter because the
other rights were not
properly canvassed in Mr Prince’s founding affidavit in the
High Court. This is not to say that
they were not alluded to at
all. It is to say that more needed to have been put into the
affidavit about how the impugned
provisions infringed those rights
than was done. In regard to the infringement of other rights,
Mr Prince simply listed a
number of rights and said that “the
blanket prohibition on cannabis” violated those rights without
saying how each
one of those rights was infringed by the impugned
provisions.
[97] Mr Jeremy David
Acton, Mr Ras Menelek Barend Wentzel and Ms Caro Leona Hennegin as
well as Mr Jonathan David Rubin had all
instituted actions in the
High Court. Therefore, whatever they may have alleged in the
particulars of claim was not evidence.
In the circumstances, I
cannot fault the High Court for deciding the case on the basis of the
right to privacy only. Leave
to cross-appeal in regard to this
aspect of the matter is refused.
Application for
leave to cross-appeal: Limitation of right to privacy to home or
private dwelling
[98] Paragraph 1 of
the order of the High Court contains the phrase “in private
dwellings”. Paragraph 3 of the
order contains the phrase
“in a private dwelling”. Paragraph 3 of the High
Court order throws light on the introductory
part of paragraph 1.
The High Court’s intention was to declare as inconsistent with
the Constitution the provisions
of the sections referred to in the
order in so far as they related to the use, possession, purchase and
cultivation of cannabis
in a home or dwelling for personal
consumption of an adult. The effect of the order of the High
Court is that an adult would
not be committing any crime by using or
possessing or cultivating cannabis in a private dwelling or in a home
for his or her consumption
but the moment he or she steps out of the
private dwelling or home, he or she would be committing a criminal
offence. This
means that an adult who has cannabis in his or
her pocket for his or her personal consumption within the boundaries
of a private
dwelling or home would not be committing an offence but
he or she would be committing an offence if, for example, he or she
were
to step outside of the boundary of the home or private dwelling
while such cannabis remained in his or her pocket and he or she
possesses it for his or her personal consumption.
[99] Mr Prince and
those who were applicants or plaintiffs in the High Court have
applied for leave to cross-appeal against the
High Court’s
decision to confine its order to the use and possession of cannabis
at home or in a private dwelling.
In their application for
leave to cross-appeal they, among other things, said:
“617 The [applicants] also make appeal against the judgment in
terms of section 14, in that it clearly only respected the
section
14(a) aspect of the
home
but entirely disregarded the right to
privacy of the ‘PERSON’ of the Cannabis user.”
They went further
and said:
“8.4 The High Court erred in only permitting the possession of
Cannabis by adults at HOME and thus left them vulnerable to
continued
prosecution without a scientifically legitimate reasons…”
“8.5 The High Court judgment did not recognise that our right
to Human Dignity, and our right to Freedom of Movement RETAINS
a
personal ‘sanction’ as we move in ANY chosen space,
whether public or private or communal, in relation to our private
carrying of Cannabis on my person in any place I choose.”
[100] It seems to me
that, indeed, there was no persuasive reason why the High Court
confined its declaration of invalidity to the
use or possession or
cultivation of cannabis at a home or in a private dwelling. In
my view, as long as the use or possession
of cannabis is in private
and not in public and the use or possession of cannabis is for the
personal consumption of an adult,
it is protected. Therefore,
provided the use or possession of cannabis is by an adult person in
private for his or her personal
consumption, it is protected by the
right to privacy entrenched in section 14 of our Constitution.
Remedy
[101] Since I have
concluded that the limitation is not reasonable and justifiable in an
open and democratic society based on human
dignity, equality and
freedom, an order will have to be made declaring the relevant
provisions constitutionally invalid to the
extent that they
criminalise the use or possession of cannabis in private by an adult
for his or her personal consumption in private.
Indeed, that
order should also declare invalid the provisions of section 5(b) read
with definition of “deal in” in
section 1 of the Drugs
Act to the extent that they prohibit the cultivation of cannabis by
an adult in private for his or her own
consumption in private.
Should the order
of invalidity operate with retrospective effect?
[102] Another issue
which must be decided is whether the order of invalidity that we make
in this matter should operate with retrospective
effect. I
think it should not because it could have a disruptive effect on,
and, cause uncertainty in, our criminal justice
system.
Accordingly, the order of invalidity in this case will operate
prospectively.
Should the order
of invalidity be suspended?
[103] The next
question is whether the operation of the order of invalidity should
be suspended. In my view, it should be
suspended in order to
afford Parliament an opportunity to correct the constitutional defect
in the impugned provisions as identified
in this judgment. If
the order of invalidity were to come into operation immediately, that
could cause many challenges in
the criminal justice system in the
country. With regard to the period of suspension, the High
Court expressed the view that
24 months would be an appropriate
period of suspension. I consider 24 months to be an appropriate
period of suspension in
this case.
Should we grant
interim relief?
[104] The next
question to consider is whether we should grant interim relief that
will operate during the period of the suspension
of the declaration
of invalidity. If at all possible, this Court should grant
interim relief so as to ensure that the applicants
and other people
in circumstances similar to theirs are granted effective relief.
In this case, if no interim relief is granted,
there are many adult
people who will continue to be arrested by the police and who will
face criminal charges and, if convicted,
possible imprisonment for
the use or possession or cultivation of cannabis in private for
personal consumption in private –
something that this
judgment says nobody should be arrested for or charged with.
[105] It seems to me
that we should grant interim relief. The interim relief we
should grant should be a reading-in.
We should read a new
sub-paragraph (vii) into section 4(b) of the Drugs Act. The new
sub-paragraph (vii) should read:
“(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.”
After the
reading-in, the new sub-paragraph (vii), which is in italics, would
read like this:
“No person shall use or have in his possession—
. . .
(b)
any dangerous dependence-producing substance or any undesirable
dependence-producing substance,
unless
.
. .
(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.
”
[106] As to section
5(b) of the Drugs Act, it seems to me that we should read into the
definition of the phrase “deal in”
in section 1 of the
Drugs Act after the word “cultivation” but before the
comma the words “other than the cultivation
of cannabis by an
adult in a private place for his or her personal consumption in
private”. With this reading-in, which
is italics, the
definition of the phrase “deal in” would read:
“ ‘deal in’, in relation to a drug, includes
performing any act in connection with the transshipment, importation,
cultivation
other than the cultivation of cannabis by an adult in
a private place for his or her personal consumption in private
,
manufacture, supply, prescription, administration, sale, transmission
or exportation of the drug.”
[107] As to section
22A(9)(a)(i) of the Medicines Act, we should read the following words
and commas into that provision after the
word “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,”
With the reading-in,
which is in italics, section 22A(9)(a)(i) would read like this:
“(9)(a) 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.”
[108] The effect of
the reading-in adopted above is that whenever the impugned provisions
prohibit the use or possession or cultivation
of cannabis, an
exception is created with the result that the use or possession of
cannabis in private or cultivation of cannabis
in a private place for
personal consumption in private is no longer a criminal offence.
All the time this is so only in respect
of an adult and not a child.
This judgment does not confine the permitted use or possession or
cultivation of cannabis to
a home or a private dwelling. This
is because there are other places other than a person’s home or
a private dwelling
where the prohibition of the use or possession or
cultivation of cannabis would be inconsistent with the right to
privacy if the
use or possession or cultivation of cannabis was by an
adult in private for his or her personal consumption in private.
Using
the term “in private” instead of “at home”
or “in a private dwelling” is preferable.
[109] The effect of
the above reading-in is the following:
(a) an adult person may, use or be in possession of cannabis in
private for his or her personal consumption in private.
(b) the use, including smoking, of cannabis in public or in the
presence of children or in the presence of non-consenting adult
persons is not permitted.
(c) the use or possession of cannabis in private other than by an
adult for his or her personal consumption is not permitted.
(d) The cultivation of cannabis by an adult in a private place for
his or her personal consumption in private is no longer a criminal
offence.
[110] In determining
whether or not a person is in possession of cannabis for a purpose
other than for personal consumption, an
important factor to be taken
into account will be the amount of cannabis found in his or her
possession. The greater the
amount of cannabis of which a
person is in possession, the greater the possibility is that it is
possessed for a purpose other
than for personal consumption.
Where a person is charged with possession of cannabis, the State will
bear the onus to prove
beyond a reasonable doubt that the purpose of
the possession was not personal consumption.
[111] The above
reading-in means that, if a police officer finds a person in
possession of cannabis, he or she may only arrest the
person if,
having regard to all the relevant circumstances, including the
quantity of cannabis found in that person’s possession,
it can
be said that there is a reasonable suspicion that a person has
committed an offence under section 40(1)(b) or (h) of the
Criminal
Procedure Act.
[84]
I think that the references to possession of cannabis, “for
personal use,” or “for personal consumption”
help
to ensure that we do not have to specify the amount or quantity of
cannabis that may be possessed. We only need to say
that the
amount that may be possessed is an amount for personal consumption.
[112] The High Court
had this to say about the distinction between the use or possession
of cannabis for personal consumption and
the use or possession
thereof for other purposes:
“[109] In this connection the 1988 Convention against
Illicit Traffic and Narcotic Drugs and Psychotropic Substances
establishes a fundamental distinction between ‘the possession,
purchase or cultivation of narcotic drugs or psychotropic
substances
for personal consumption (article 32 (2)) from trafficking
and dealing conduct (article 3(1), conduct which
is described as
‘serious’). This distinction is reflected in the
differential regulation in the Drugs Act of
possession for personal
use (s 4) and dealing (s 5). The Drugs Act recognises, for
example, that when it comes to possession
for purposes of personal
use, smaller quantities are involved. Hence, the Act created a
presumption that a person found in
possession of cannabis exceeding
the prescribed mass was presumed to be dealing. Section
21(1)(a)(i) of the Drugs Act
presumes that a person possessing
more than 115 grams of cannabis is dealing. The provision
has, however as noted,
been declared unconstitutional in
S v Bhulwana; S v Gwadiso
[1995] ZACC 11
;
1996 (1) SA 388
(CC). The quantity of cannabis in a person’s possession
constitutes an objective, established and readily enforceable
basis
upon which to distinguish possession for personal consumption from
dealing or other, more serious conduct. Whether
the existing
prescribed quantity should remain applicable in the light of the
finding of this Court is for the legislature to determine,
hence any
reading in of words into the Drugs Act is not an appropriate approach
in this case.”
[85]
Of course, I do not
agree with the view in the last sentence that any reading-in of words
into the Drugs Act would be inappropriate
unless, of course, the High
Court was referring to a reading-in of the amount of cannabis that
would be for personal consumption
in which case I would agree.
[113] At a practical
level, a question that arises is: if a police officer finds someone
in possession of cannabis, how will he
or she know whether that
person is in possession of that cannabis for personal consumption?
Will he or she rely on that person’s
word? Will he or she
ask questions aimed at establishing that? Obviously, a police
officer will ask the person questions
but his or her answers will not
be decisive. The police officer will need to have regard to all
the relevant circumstances
and take a view whether the cannabis
possessed by a person is for personal consumption. If he or she
takes the view, on reasonable
grounds, that that person’s
possession of cannabis is not for personal consumption, he or she may
arrest the person.
If he or she takes the view that the
cannabis in the person’s possession is for that person’s
personal consumption,
he or she will not arrest him or her.
[114] It is true
that there will be cases where it will be clear from all the
circumstances that the possession of cannabis by a
person is for
personal use or consumption. There will also be cases where it
will be clear from all the circumstances that
the possession of
cannabis by a person is not or cannot be for personal consumption or
use. Then, there will be cases where
it will be difficult to
tell whether the possession is for personal consumption or not.
In the latter scenario a police officer
should not arrest the person
because in such a case it would be difficult to show beyond
reasonable doubt later in court that that
person’s possession
of cannabis was not for personal consumption.
[115] The above
reading-in may be criticised on the basis that it does not provide
either a police officer or anyone with certainty
as to when the
possession of cannabis can be said to have crossed the line of
personal use or consumption and will, therefore,
have become
prohibited. However, that criticism can equally be levelled at
our law in regard to, for example, the crime of
negligent driving.
A police officer who sees a car that is being driven in a certain
manner forms a view whether or not the
driver of that car is driving
negligently. That view will be based on the police officer’s
observation of the manner
in which the car is being driven.
[116] If the police
officer takes the view that the driver is not driving negligently, he
or she will not arrest the driver.
If, on the other hand, the
police officer takes the view that the car is being driven
negligently and he or she thinks that his
belief is based on
reasonable grounds, he or she may arrest the driver for negligent
driving. That driver will be charged
with negligent driving and
the Court will decide whether he or she was driving negligently.
If the Court concludes that the
State has proved beyond reasonable
doubt that the driver was driving negligently, it will convict the
driver of negligent driving.
Whether or not a driver is driving
or drove his or her car negligently depends upon whether a reasonable
driver in his or her position
could have driven the way he drove. In
other words, it depends on whether he or she has fallen short of the
standard of driving
expected from a reasonable driver in his or her
position.
[117] To the extent
that the reading-in I have adopted in this judgment may be criticised
on the basis that it creates uncertainty,
the uncertainty that it may
create is no worse than the uncertainty in our law connected with the
crime of negligent driving.
Just as a police officer would look
at the facts in regard to how a driver is driving his or her motor
vehicle and take a view
whether the driver should be arrested for
negligent driving, so, too, will a police officer take a view of the
facts in the case
of possession of cannabis whether or not the person
concerned is in possession of the cannabis for personal consumption
in private.
If he takes the view that it is not being possessed
for personal consumption or use, he or she will arrest the person and
cause
him to be charged criminally. If, however, he is
satisfied that the person is in possession of cannabis for personal
consumption
or use, he or she will not arrest that person.
[118] There are
statutory offences which also require a police officer to take a view
on given facts and then decide whether to
arrest a person or not. In
those cases, too, ultimately, the Court decides.
[119] Section 36 of
the General Law Amendment Act
[86]
provides:
“Any person who is found in possession of any goods, other than
stock or produce as defined in section one of Stock Theft
Act, 1959
(Act 57 of 1959), in regard to which there is reasonable suspicion
that they have been stolen and is unable to give a
satisfactory
account of such possession
, shall be guilty of an offence and
liable on conviction to the penalties which may be imposed on a
conviction of theft.” (emphasis
added).
[120] Sections 2 and
3 of the Stock Theft Act
[87]
provides:
“2.Failure to give satisfactory account of possession of stock
or produce
Any person who is found in possession of stock or produce in regard
to which there is reasonable suspicion that it has been stolen
and is
unable to give a satisfactory account of such possession
shall
be guilty of an offence.
3.Absence of reasonable cause for believing stock or produce properly
acquired
(1)
Any person who, in any manner, otherwise than at a public sale,
acquires or receives into his or her possession from any other
person
stolen stock or stolen produce without having reasonable cause for
believing, at the time of such acquisition or receipt,
that such
stock or produce is the property of the person from whom he or she
acquires or receives it or that such person has been
duly authorized
by the owner thereof to deal with it or dispose of it shall be guilty
of an offence.
(2)
In the absence of evidence to the contrary which raises a reasonable
doubt, proof of possession as contemplated in subsection
(1) shall be
sufficient evidence of the absence of reasonable cause.”
[121] It is clear
from these provisions that an essential element of the offence of
possession of stolen goods is that the person
found in possession of
the goods must be “unable to give a satisfactory account of
such possession.” If he or
she is able to give a
satisfactory account of his or her possession of the goods, his or
her possession of the goods does not constitute
a criminal offence.
If, however, he or she is unable to give a satisfactory account of
his or her possession of the goods,
his or her possession of the
goods is a criminal offence provided that the other elements of the
offence are satisfied.
[122] Before a
police officer arrests a person in connection with the crime created
by section 36, he or she must first ask the
person for an account of
his or her possession of the goods. That means that the person
would give his or her account of
the possession of the goods to the
police officer and the police officer will have to weigh it up
together with all other information
and decide whether the account is
satisfactory or not. If the police officer thinks that the
account is satisfactory, he
or she would not arrest the person.
If he or she thinks that the account is unsatisfactory, he or she
would arrest the person
and, ultimately, the court would decide at
the trial whether the account is satisfactory or not.
[123] To me, that is
no different from what will have to happen on the above reading-in if
a police officer finds a person in possession
of cannabis and he or
she thinks it is not for personal consumption. He or she will
ask the person such questions as may
be necessary to satisfy himself
or herself whether the cannabis he or she is in possession of is for
personal consumption.
If, having heard what the person has to
say, the police officer thinks that the explanation is not
satisfactory, he or she
may arrest the person. Ultimately, it
will be the court that will decide whether the person possessed the
cannabis for personal
consumption.
[124] Section 36 of
the General Law Amendment Act and section 2 and 3 of the Stock Theft
Act are not the only examples that
are based on existing statutory
provisions. In terms of the Liquor Act
[88]
the sale of liquor by a person who is not a holder of a liquor
licence is a criminal offence. Section 167 of that Act
then provides as follows in so far as it is relevant:
“167. Evidence in any criminal proceedings that any person who
is not the holder of a licence –
…
(c)
had on his or her premises
more liquor than was reasonably
required for his or her personal use
and
for the use of any
person residing thereon
; or
(d)
bought or procured or had in his or her possession or custody or
under his or her control more liquor than
was reasonably necessary
for consumption by himself or herself, his or her family or his or
her
bona fide
employees or guests,
shall be
prima facie
proof of sale of liquor by the first
mentioned person.”
From this it can be
seen that the Liquor Act already deals with a situation where,
initially a police officer must, in a particular
case, take a view
whether a person had more of something than is reasonably required
for his or her personal use. That is
liquor.
[125] There is also
paragraph 53 of the Eighth Schedule of the Income Tax Act
[89]
.
It reads:
“53. Personal-use assets
(1) A natural person or a special trust must disregard a capital gain
or capital loss determined in respect of the disposal of
a
personal-use asset as contemplated in subparagraph (2).
(2)
A personal-use asset is an asset of a natural person or a
special trust that is used mainly for purposes other than the
carrying
on of a trade
.
(3)
Personal use assets do not include
-
(a)
a coin made mainly from gold or platinum of which the market value is
mainly attributable to the material from which it is minted
or cast;
(b)
immovable property;
(c)
an aircraft, the empty mass of which exceeds 450 kilograms;
(d)
a boat exceeding ten metres in length;
(e)
a financial instrument;
(f)
any fiduciary, usufructuary or other like interest, the value of
which decreases over time;
(g)
any contract in terms of which a person, in return for payment of a
premium, is entitled to policy benefits upon the happening
of a
certain event and includes a reinsurance policy in respect of such a
contract, but excludes any short-term policy contemplated
in the
Short-term Insurance Act;
(h)
any short-term policy contemplated in the Short-term Insurance Act to
the extent that it relates to any asset which is not a
personal-use
asset; and
(i)
a right or interest of whatever nature to or in an asset envisaged in
items (a) to (h).
(4) For the purposes of subparagraph (2), an asset of a natural
person or a special trust to whom an allowance is or was paid or
payable in respect of the use of that asset
for business purposes,
must be treated as being used mainly for purposes other than the
carrying
”.
[126] The
regulations to the National Environment Management: Biodoversity
Act
[90]
,
define a possession permit as “a permit for keeping or
conveying a specimen of a listed threatened or protected species
for
personal use
in a person’s possession without carrying
out any other restricted activity”.
[91]
[127] I have
addressed above the question of how a police officer will know
whether an adult who is in possession of cannabis is
in possession
thereof for personal consumption or not. In regard to
cultivation the question also arises as to how a police
officer who
comes across cannabis that is being grown in a garden or in a private
place will know whether the adult person growing
it is growing it for
his or her personal consumption. In my view all the
considerations I have discussed above in relation
to how a police
officer will determine whether cannabis is possessed for personal
consumption apply with equal force to the cultivation
of cannabis in
a private place for personal consumption and they need not be
repeated here.
[128] The reading-in
that I have adopted in this judgment will apply until such time that
Parliament cures the constitutional defect.
If Parliament fails
to cure the constitutional defect within the period of the suspension
of the order of invalidity, the reading-in
will continue to be part
of the legislation.
[129] In all the
circumstances I make the following order:
1. The application to stay these proceedings is dismissed.
2. The application brought by King Adam Kok V, the Griqua Nation,
Chief Petros Vallbooi and the /Auni San People for leave to intervene
as parties is dismissed.
3. Leave to appeal is granted.
4. Leave to cross-appeal is granted.
5. The appeal is dismissed.
6. The cross-appeal is upheld in part to the extent that the
reference in the order of the High Court to “in a private
dwelling”
or “in private dwellings” is replaced
with “in private” or in the case of cultivation, “in
a private
place”.
7. The order of the Western Cape Division of the High Court is
confirmed only to the extent reflected in this order and is not
confirmed in so far as it is not reflected in this order.
8. To the extent that the order of the Western Cape Division of the
High Court purported to declare as constitutionally invalid
provisions of sections referred to in that order that prohibit the
purchase of cannabis, that part of the order is not confirmed.
9. To the extent that the order of the Western Cape Division of the
High Court excluded from the ambit of its order of the
declaration of invalidity provisions of the sections referred to in
that order that prohibit the use or possession of cannabis
in private
in a place other than a private dwelling by an adult for his or her
own personal consumption in private, that part of
the order is not
confirmed.
10. It is declared that, with effect from the date of the handing
down of this judgment, the provisions of
sections 4(b)
of the
Drugs
and Drug Trafficking Act 140 of 1992
read with
Part III
of Schedule 2
of that Act and the provisions of section 22A(9)(a)(i) of the
Medicines and Related Substances Control Act 101
of 1965 read with
Schedule 7 of GN R509 of 2003 published in terms of section 22A(2)
of that Act are inconsistent with right
to privacy entrenched in
section 14 of the Constitution and, therefore, invalid to the
extent that they make the use or possession
of cannabis in private by
an adult person for his or her own consumption in private a criminal
offence.
11. It is declared that, with effect from the date of the handing
down of this judgment, the provisions of
section 5(b)
of the
Drugs
and Drug Trafficking Act 140 of 1992
read with
Part III
of Schedule 2
of that Act and with the definition of the phrase “deal in”
in
section 1
of the
Drugs and Drug Trafficking Act 140 of 1992
are
inconsistent with the right to privacy entrenched in section 14 of
the Constitution and, are, therefore, constitutionally invalid
to the
extent that they prohibit the cultivation of cannabis by an adult in
a private place for his or her personal consumption
in private.
12. The operation of the orders in 10 and 11 above is hereby
suspended for a period of 24 months from the date of the handing
down
of this judgment to enable Parliament to rectify the constitutional
defects.
13. During the period of the suspension of the operation of the order
of invalidity:
(a)
section 4(b)
of the
Drugs and Drug Trafficking Act 140 of 1992
shall
be read as if it has sub-paragraph (vii) which reads 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.”
(b)
the definition of the phrase “deal in” in
section 1
of
the
Drugs and Drug Trafficking Act 140 of 1992
shall be read as if
the words “other than the cultivation of cannabis by an adult
in a private place for his or her personal
consumption in private”
appear after the word “cultivation” but before the comma.
(c)
the following words and commas are to be read into the provisions of
section 22A(9)(a)(i) of the Medicines and Related Substances
Control
Act 101 of 1965 after the word “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,”
14. The above reading-in will fall away upon the coming into
operation of the correction by Parliament of the constitutional
defects
in the statutory provisions identified in this judgment.
15. Should Parliament fail to cure the constitutional defects within
24 months from the date of the handing down of this judgment
or
within an extended period of suspension, the reading-in in this order
will become final.
16. Subject to paragraph 17 below, no order as to costs is made.
17. The Minister of Justice and Constitutional Development must pay
all disbursements and expenses reasonably incurred by Mr Gareth
Prince, Mr Jeremy David Acton, Mr Ras Menelek Barend Wentzel and Ms
Caro Leona Hennegin in opposing the appeal and in confirmatory
proceedings.
Country/Jurisdiction
Applicable Legislation
Year of decriminalisation
or legalisation
1.
Austria
Narcotic Substances Act SMG -
Suchtmittelgesetz of 1998
2016
2.
Australia (Capital territory)
Drugs of Dependence Act 1989
1992
3.
Australia (Northern territory)
Drugs of Dependence Act 1990
1996
4.
Australia (South Australia)
The Controlled Substances Act
1984.
Expiation of Offences Act 1996
(SA) s 15(4).
1987
5.
Canada
Legalised with the
Cannabis Bill (Bill C – 45)
2018
6.
Chile
LEY NUM. 20.000
2007
7.
Czech Republic
Government decree 467/2009
2010
8.
Estonia
The Act on Narcotic Drugs and
Psychotropic Substances Act 1997 – Art 31 & Art 151
Penal Code – Ar184
2002
9.
Jamaica
The Dangerous Drugs (Amendment)
Act 2015
2015
10.
Portugal
Law 30/2000 - Art 2
2000
11.
Spain
Law 1/1992, Art 25-28
2015
12.
Switzerland
The Federal Narcotics and
Psychotropic Substances Act (BetmG; SR 812.121) of 1951
2013
13.
Alaska (USA)
Case: Ravin v. State,
537 P.2d 494
(1975)
Legalised in 2015
14.
California (USA)
The Adult Use of Marijuana
Act Proposition 64
Legalised in 2016
15.
Colorado (USA)
The Colorado Amendment 64
Legalised in 2012
16.
Connecticut (USA)
Senate Bill 1014
Legalised in 2014
17.
Delaware (USA)
HB 39
Legalised in 2015
18.
Illinois (USA)
Bill 2228
2016
19.
Maine (USA)
The Maine Marijuana legalisation
Act
Legalised in 2016
20.
Massachusetts (USA)
Massachusetts Marijuana
Legalisation, Question 4
Legalised in 2016
21.
Maryland (USA)
SB 364
2014
22.
Minnesota (USA)
The Minnesota statute Code 152.01,
et seq.
1976
23.
Mississippi (USA)
Code 41-29-101, et seq.; 41-29-139
1978
24.
Missouri (USA)
HB 512
2017
25.
Nevada (USA)
Initiative to Regulate and Tax
Marijuana
Legalised in 2017
26.
New York (USA)
New York Penal Law Article 221.
2014
27.
North Carolina (USA)
North Carolina Controlled
Substances Act
1977
28.
Ohio (USA)
Ohio Rev. Code Ann. § 2925.11
2016
29.
Oregon (USA)
Measure 91
Legalised in 2014
30.
Washington (USA)
Initiative 502 (I-502)
Legalised in 2012
31.
Rhode Island (USA)
Code 21-28-1.01, et seq
2013
32.
Vermont (USA)
HB.511 (Act 86)
Legalised 2018
33.
Uruguay
Law 19.172
Legalised in 2013
For the Applicants:
T J B Bokaba SC, S Poswa-Lerotholi, P Mhlana and P Jara instructed by
the State Attorney, Cape Town.
For the Respondents:
G Prince per se and J D Acton per se.
For the First to
Third Intervening Parties: D Mahon and C Marule instructed by
Schindlers Attorneys.
Independent Amicus
Curiae: R Paschke and J Foster.
For the Amicus
Curiae: R S Willis, T R Mafukidze, J A Harwood and K van Heerden
instructed by Marshall Attorneys.
[1]
Constitution of the Republic of South Africa, 1996.
[2]
Section 30 reads:
“Language and culture
30. Everyone has the right to use the language and to participate in
the cultural life of their choice, but no one exercising
these
rights may do so in a manner inconsistent with any provision of the
Bill of Rights.”
[3]
Section 31 reads:
“Cultural, religious and linguistic communities
31. (1) Persons belonging to a cultural, religious or linguistic
community may not be denied the right, with other members of
that
community—
(a) to enjoy their culture, practice their religion and use their
language; and
(b) to form, join and maintain cultural, religious and linguistic
associations and other organs of civil society.
(2) The rights in subsection (1) may not be exercised in a manner
inconsistent with any provision of the Bill of Rights.”
[4]
Prince v Minister of Justice
[2017] ZAWCHC 30
;
2017 (4) SA
299
(WCC) (High Court Judgment) at para 20.
[5]
Id at paras 21-5.
[6]
Id at para 25.
[7]
Id at para 27.
[8]
Id at para 91.
[9]
Id.
[10]
Id at para 92.
[11]
Id at para 101.
[12]
Id.
[13]
Id at para 102.
[14]
Id.
[15]
Id at para 103.
[16]
Id at para 104.
[17]
Id at para 104.
[18]
[2003] 3 SCR 571 2003 SCC 74.
[19]
High Court Judgment above n 4 at para 106.
[20]
Id at para 107.
[21]
Id at para 108.
[22]
Id at para 110.
[23]
Id at para 112.
[24]
Convention Against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances, 20 December 1988.
[25]
High Court Judgment above n 4 at para 109.
[26]
Id at paras 109-10.
[27]
Constitution above n 1 at section 14.
[28]
Bernstein v Bester
[1996] ZACC 2
,
1996 (2) SA 751
(CC),
1996
(4) BCLR 449
(CC) (
Bernstein
).
[29]
Id at para 73.
[30]
Id at para 76.
[31]
Id.
[32]
Id at para 75.
[33]
Id at para 77.
[34]
National Coalition for Gay and Lesbian Equality v Minister Of
Justice
[1998] ZACC 15
;
1999 (1) SA 6
(CC);
1998 (12) BCLR 1517
(CC) (
National Coalition
).
[35]
Id at para 31.
[36]
Khumalo v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC);
2002
(8) BCLR 771
(CC) (
Khumalo
).
[37]
Id at para 27.
[38]
Case v Minister of Safety and Security; Curtis v Minister of
Safety and Security
[1996] ZACC 7
; 1996 (3) SA 617 (CC)
[1996] ZACC 7
; ;
1996 (5) BCLR 609
(CC) (
Case
).
[39]
37 of 1967.
[40]
Case
above n 38 at para 91.
[41]
Id at para 99.
[42]
Stanley v Georgia
394 U. S. Reports 557 (
Stanley
).
[43]
Id page 559.
[44]
Olmstead v United States
[1928] USSC 133
;
277 U.S 438
(
Olmstead)
.
[45]
Stanley
above n 44 page 565.
[46]
Id page 568.
[47]
Ravin v State of Alaska
537 P.2d 494
(
Ravin
).
[48]
Id page 498.
[49]
Id page 498.
[50]
Id page 504.
[51]
Id page 511.
[52]
Prince v President of the Law Society of the Cape of Good Hope
[2002] ZACC 1
;
2002 (2) SA 794
;
2002 (3) BCLR 231
(
Prince
II
).
[53]
Id at para 26.
[54]
Id at para 114.
[55]
Id at para 116.
[56]
Id at para 131.
[57]
1972 (2) SA 753 (T).
[58]
Id at 762A-B.
[59]
Prince II
above n 52 at 77.
[60]
World Health Organisation
The Health and Social Effects of
Nonmedical Cannabis Use
(WHO report) page 24 at para 3.1.3.
[61]
See [78] below.
[62]
WHO report above n 60 page 23 at para 3.1.3.
[63]
Id at para 5.1.6.
[64]
Id at para 7.1.3.
[65]
Stanley
above n 42 at 559.
[66]
Id at 564.
[67]
Olmstead
above n 44 at 478.
[68]
Ravin
above n 47 at 511.
[69]
Id at 512.
[70]
High Court Judgment above n 4 at para 59 and [78] below.
[71]
Ravin
above n 47 at 507.
[72]
Id.
[73]
Id at 509
.
[74]
Prince II
above n 52 at para 81.
[75]
Id at para 82.
[76]
At 569.
[77]
High Court Judgment above n 4 para 59.
[78]
Id paras 85-8
[79]
Prince II
above n 52 at para 26.
[80]
Id.
[81]
Id para 61.
[82]
Id.
[83]
51 of 1997.
[84]
Section 40(1)(a) and (h) reads:
“40. Arrest by peace officer without warrant
(1) A peace officer may without warrant arrest any person—
(a) who commits or attempts to commit any offence in his presence;
…
(h) who is reasonably suspected of committing or of having committed
an offence under any law governing the making, supply, possession
or
conveyance of intoxicating liquor or of dependence-producing drugs
or the possession or disposal of arms or ammunition”.
[85]
High Court Judgment above n 4 at para 109.
[86]
62 of 1955.
[87]
57 of 1959.
[88]
59 of 2003.
[89]
58 of 1962.
[90]
10 of 2004.
[91]
GN R152 of 2007 of Act 10 of 2004.