In this way, the ConCourt decided that you can smoke day at home



The order of constitutional invalidity of the High Court was then referred to the Constitutional Court for confirmation, as required by the Constitution. The State appealed against the decision of the High Court and opposed its confirmation. Mr Prince and his co-petitioners to the High Court have asked for a cross-appeal against the fact that the High Court did not conclude that the legal provisions also infringed the other rights on which they had relied and enshrined in the Constitution. They have also requested an occasional appeal against the decision of the High Court to limit its order to the use or possession or the purchase or cultivation of cannabis in a private home. However, they argued that if the High Court had rightly held that the infringement of the right to privacy was restricted, it should not have been restricted to a dwelling or private home, because the right to privacy extends beyond the boundaries of a house.

In a unanimous judgment written by Zondo ACJ, as he was then, the Constitutional Court stated

(a) Part 4 (b) of the Drug Law was unconstitutional and therefore invalid insofar as it privately prohibits the use or possession of cannabis by an adult private person for the personal consumption of that adult;

(b) Section 5 (b) of the Drug Law is constitutionally invalid in that it prohibits the cultivation of cannabis by an adult at a private place for private consumption by that adult; and

(c) Section 22A (9) (a) (i) of the Medicines Act was constitutionally invalid insofar as it makes private use of cannabis by an adult in private for the personal consumption of that adult.

The Constitutional Court ruled that these legal provisions were constitutionally invalid to the extent indicated because they violated the right to privacy enshrined in Article 14 of the Constitution. The Constitutional Court rejected the restriction by the High Court of his order to use, cultivate or own cannabis "at home or in a private home". It ruled that the right to privacy extends over the boundaries of a house.

The effect of the verdict is twofold: (a) it decriminalizes the use or possession of cannabis by an adult in private for private use of that adult; and (b) decriminalises the cultivation of cannabis by an adult at a private place for private consumption of that adult. However, the use or possession of cannabis by a child anywhere, or by an adult in public, is not decriminalized.

The Constitutional Court suspended the invalidity order for a period of 24 months to give Parliament the opportunity to correct the constitutional deficiencies in the two laws. In order to ensure that people in the same category as Mr Prince and his co-applicants receive effective help, Zondo granted ACJ provisional relief through a reading of the two laws to ensure that during the period of suspension of disability, it would not be an offense for an adult person:

(a) to use or hold privately owned private cannabis for private use; and

(b) to grow cannabis in a private place for private use.

Zondo ACJ felt that it should be left to the Parliament to decide on the amount of cannabis an adult may use, possess or grow to make it "personal". He felt that the Court would violate the doctrine of the separation of powers if it were to determine the amount itself.

How a policeman would know whether or not the amount of cannabis in possession of an adult is intended for the personal consumption of that adult, the Court ruled that a policeman should consider all circumstances, including the amount of cannabis, in possession of an adult. If the policeman, on reasonable grounds, suspects that the person in question is in possession of that cannabis for trading and not for personal consumption, the officer can arrest the person, but in the end a court will decide whether the person was in possession of cannabis with the intention to act, or for their own personal consumption.

Eventually, the state's appeal was rejected and the Constitutional Court upheld the decision of the High Court insofar as shown above.


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