April 21, 2017

Ending the week on a high note

On 31 March 2017 Judge Davis, in the matter of Prince v Minister of Justice and Constitutional Development and Others; Rubin v National Director of Public Prosecutions and Others; Acton and Others v National Director of Public Prosecutions and Others (4153/2012) [2017] ZAWCHC 30 (31 March 2017) handed down an extremely controversial judgment legalising the private growing and possession of marijuana.

The judgement caused quite a commotion throughout South Africa. In this matter, the applicants held that the criminalisation of private dagga use and possession thereof was a clear violation of their right to privacy, equality and most importantly, freedom to practice their religion.

It all started in 2002 when the very same Prince in the matter of Prince v President of the Law Society of the Cape of Good Hope 2002 challenged certain provisions of the Drugs and Drug Trafficking Act on the basis that such provisions violated his rights as a Rastafarian to use and possess dagga for religious purposes. The Constitutional Court ruled that these provisions were in fact a limitation on Prince’s religious freedom, but that the limitation was nonetheless justifiable under the Constitution.

In view of the 2002 case, Judge Davis on 31 March 2017 made the observation that it was pointless to again deal with the alleged infringement on the right to religious freedom and instead focused on the possible infringement on the right to privacy which the Court had failed to consider in 2002, finding that the legal prevention of private growing and possession of dagga was in fact a violation of the right to privacy and could not be justified under the Constitution.

Judge Davis in this ruling maintained that the Court must invoke its powers under s 172 (1) (b) of the Constitution which reads as follows:-

“Powers of courts in constitutional matters

  1. (1) When deciding a constitutional matter within its power, a court—

(a) must declare that any law or conduct that is inconsistent with the Constitution

is invalid to the extent of its inconsistency; and

(b) may make any order that is just and equitable, including—

(i) an order limiting the retrospective effect of the declaration of invalidity;


(ii) an order suspending the declaration of invalidity for any period and on

any conditions, to allow the competent authority to correct the defect.

(2) (a) The Supreme Court of Appeal, the High Court of South Africa or a court of

similar status may make an order concerning the constitutional validity of

an Act of Parliament, a provincial Act or any conduct of the President, but an

order of constitutional invalidity has no force unless it is confirmed by the

Constitutional Court”.

The Court made an interim order for Parliament to amend the Drugs Act within 24 months to bring it in line with the Constitution. The order also provided for all prosecutions falling within the invalidated provisions to be suspended pending such amendment. Keep in mind, however, that this order of invalidity must first be confirmed by the Constitutional Court in terms of Section 172(2) of the Constitution.

This judgement has sparked much excitement in some parts of the country however, rumour has it that all relevant Government Departments will most likely appeal the judgement, which will result in the interim order not being enforceable and enforcement of current legislation will have to continue.

Some words of advice, then: don’t start laying out that long-planned green house just yet!

Author: Almie Fourie

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