Cape Town - You can no longer be arrested for smoking dagga at home, or even for possession when police may be in doubt about whether you are using or dealing.
The country’s apex Constitutional Court on Tuesday decriminalised the possession, consumption and private cultivation of the herb at home, to loud acclaim from the public gallery.
Deputy Chief Justice Raymond Zondo was interrupted by loud applause several times as he read a unanimous judgment on behalf of several colleagues confirming a Western Cape High Court judgment by Judge Dennis Davis.
It found provisions of the Drugs and Drug Trafficking Act inconsistent with the right to privacy in prohibiting the cultivation of cannabis by an adult in a private place for personal consumption in private.
“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 person’s possession of cannabis was not for personal consumption,” said Justice Zondo.
The matter initially brought before court by Dagga Party leader Jeremy Acton and Rastafarian Garreth Prince, landed in the country’s highest court following Judge Davis’s judgment last year that provisions in the act unjustifiably limited applicants’ rights to privacy.
He found it unjustifiable to prevent people possessing or cultivating cannabis in the privacy of their own homes.
The high court had ordered Parliament to change the legislation within 24 months.
In terms of the Constitution, the Concourt has to endorse or overturn such a decision.
Should Parliament fail to change the constitutional defects within 24 months, the order would become final, said Justice Zondo.
Meanwhile, the wheels are in motion to commercialise hemp in South Africa. Hemp is like dagga but without the narcotic effect.
The Department of Agriculture, Forestry and Fisheries said it was leading an interdepartmental team to develop a new regulatory framework for hemp.
They had already formally requested the departments of Health and of Justice and Constitutional Development to consider legislative amendments to allow for the commercialisation of hemp.
“(The department) awaits a response from these departments,” it said, adding that the government had recognised the medicinal and commercial efficacy of the plant.