Analysis: Why ConCourt dagga ruling makes the law even more smokey
How much marijuana is legal, and what exactly did the judge mean by smoking in a 'private space'?
A landmark Constitutional Court ruling on Tuesday decriminalising the smoking of marijuana at home leaves some unanswered questions about exactly where the dagga can be consumed and how it will be acquired.
Wits University law professor James Grant told Times Select he thought it was problematic that the court did not clearly define what a private space for smoking is.
In April 2017, the Western Cape High Court found it was a violation of the right to privacy for the state to ban the cultivation and use of dagga at a “private home”. In confirming this high court order, the Constitutional Court on Tuesday changed the wording of “private home” to “private”.
Deputy Chief Justice Raymond Zondo, who wrote the unanimous ConCourt judgment, said people could smoke dagga and grow dagga plants anywhere that is considered to be a private space, which is not necessarily a home.
Zondo wrote in the judgment: “It seems to me 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 private dwelling ... As long as use or possession of cannabis is private and not in public and for personal consumption is protected.”
Zondo changed the wording in the high court judgment from “private home” to “private” so that people are not criminalised for private possession on their person.
Grant said Zondo relied on other judgments that defined privacy as a place that a person could reasonably expect to be private.
Grant said this still did not define clearly what a private space for smoking was. He wanted to know if it could include an abandoned building, for instance. Or: “Does a members-only restaurant constitute a private space?” he asked.
Grant also said the judgment does not allow people to buy dagga, only to grow their own.
“Where does one get seed?” asked Grant.
What is clear in the judgment is that dagga cannot be smoked publicly or in the presence of children.
The ConCourt gave parliament two years to make laws regulating the personal use of dagga. Parliament must also decide what amount of dagga would be legal and how many plants an individual could legally cultivate.
Myrtle Clarke, of the so-called dagga couple who were friends of the court, was delighted with the ruling. “I don’t even know what to say,” she said tearfully.
But Clarke also expressed concern over some aspects of the ruling. She said there was a grey area that allowed police to decide when to arrest a person breaking dagga laws.
In the judgment, Zondo said police had the discretion to decide between what amount is acceptable for personal use and what amount is illegal and likely for sale. He said this was just like when the police had the discretion to decide on arrests for other crimes, such as deciding if a driver is driving negligently.
Grant agreed with Clarke, saying the open-ended judgment brought about some difficulties.
“What is an amount that is reasonable ... for personal use? Presumably it’s about one’s purpose. If that is so, then the police are free to attribute to people the required motive to deal no matter how little they possess and to continue to arrest as they please.”
Jeremy Acton of the Dagga Party, an applicant in the ConCourt matter, said he was determined to raise funds to ensure he wins a seat in parliament in next year’s general elections, so he can influence the regulation of the private use of dagga.
Acton believes he has the knowledge and skills to help parliament decide what is best for marijuana smokers, “so that people aren’t making laws about us”.
He added that he was stoned when he prepared the court papers for the ConCourt matter.
“The plant wrote the papers,” he said with a proud smile.