South Africa April 24, 2017

South Africa: Your Constitutional Right To Private Cannabis Use

Proving the opposite of her superstitious rearrangement, Friday the 31st of March 2017 was a momentous day for South African cannabis users. The Western Cape High Court found the prohibition of private cannabis use and cultivation unconstitutional. Judge Dennis Davies delivered the unanimous ruling to a room cluttered with flags, placards and dreads.

Photo credit – News24

The ruling comes after “The Dagga Party” launched an application in the court to declare the prohibition of cannabis unconstitutional. The plaintiffs, Jeremy Acton and Ras Gareth Prince, hired no legal representation and opted to argue their case personally. Despite the mountain of evidence supplied, the judges found the majority of the pairs’ substantiating paperwork to be unrelated or irrelevant. Similarly, the state found themselves on the sharp end and attracted harsh commentary for their lack of expert testimony.

The trial lasted less than a week and Acton, Prince and the rest of South Africa were sentenced to a four month delay in judgement. Judge Davis set the final hour: the ruling would come by the end of the first quarter of 2017.

The cannabis community was optimistic. The state had received a tongue lashing from Judge Davis who cited multiple flaws in their argument during the trial. Presenting tired myths and moral misjudgements, the state seemed no more legally qualified than Acton and Prince. The trial was unconventional, there was a pittance of argument and almost all the evidence presented from both sides was considered insufficient.

While the cannabis community held its’ breath over the following months, the judges had appointed a team of professionals to gather and collate external sources of evidence. A literature review was then put forward for consideration and the judges used these sources as reference of evidence.

On the 31st of March, the judges delivered their judgement. The courtroom had an eerie silence and a hint of hope. The plaintiffs were confident, the state simply did not prove the need for prohibition. Davis began reading the sixty page document and the audience strained to follow exactly what the legal speak meant.

Slowly eyes began to widen, Prince and Acton beamed around the room. Davis, upon inspecting the claim of constitutional infringement by prohibition, found the strongest premise was hinged on every citizens’ right to privacy in their own home and of their person. Substantiating the judgement with a review of the relevant literature, the judges found little to no evidence to support prohibition. The judgement burned down to a simple premise: the harms of cannabis consumption are not negative enough to warrant the infringement of a persons’ constitutional right to privacy. In other words, every person has the right to private cannabis use in their own homes.

While no laws have been changed, the judgement compelled government to rewrite and rectify legislation within 24 months. The judges included the command to prosecutors that the judgement is an acceptable and adequate defensive to a charge relating to private cannabis use.

Although the country is still in a relative grey area, another constitutional challenge is beginning in August. Presented by South Africa’s cannavist couple “The Dagga Couple”, the case differs from Acton and Prince’s as the case is being heard by a full bench of constitutional judges as well as presenting expert witnesses and testimony. All in all the case is set to last 3 weeks and the couple is proposing a model for a legal cannabis market.

On the back of judge Davis’s ruling, the cannabis community is optimistic. With one judgement in the bag, legalisation could be a reality within months. South Africa is a world renowned producer of cannabis and sports some of the rarest landrace genetics. Combined with the climate and exposure, South Africa could soon be an international recognised producer of top shelf products.

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