September 19, 2018

The first step in the legalisation of marijuana

One thing I love about South Africans is our ability to find humour in anything. Last night Pierre de Vos tweeted a Facebook post that he had seen: the names of the days of the week in Afrikaans have been changed – Monday becomes Maandagga, Tuesday becomes Dinsdagga, Wednesday becomes Woensdagga, and so on.

The Constitutional Court (CC) judgment that was handed down on Tuesday, 18 September 2018, confirming (with slight, but important, amendments) the decision of the Western Cape Division of the High Court, stands as the first step to decriminalize marijuana in South Africa. It also raises some interesting questions.

In a nutshell, the CC found that:

  • It is not illegal for an adult to use or possess cannabis for that adult’s personal consumption in private; and
  • It is not illegal for an adult to grow cannabis in a private place for that adult’s personal consumption in private.

It remains illegal to sell cannabis (or even give it away), even if it is to an adult for his or her personal use in private. It also remains illegal for an adult to possess or cultivate cannabis that is not intended for his/her personal consumption. The quantity that will tip the scale has been left to parliament to decide. It also remains illegal for a minor (anyone under 18) to possess or use cannabis.

The High Court’s decision was that the possession, use and cultivation should happen in a private dwelling.  The constitutional court changed that to simply “in private”. The reason for this is that the reasoning for the High Court’s decision was that the offending legislation infringed on our right to privacy. The CC found that our right to privacy extends beyond our dwellings.

It will be interesting to see how the “in private” idea develops. Generally, a private place is any place that is not open to the general public.  So, a club that requires membership is “in private”. Is a restaurant or other gathering place with “right of admission reserved” “in private”? One’s workplace certainly is “in private”.  Don’t be surprised if someone lights up a joint and offers you a toke at your next smoke break! Seriously, companies are going to have to review their smoking policies.

This judgment could open up a can of worms. If you can possess cannabis for your personal use in private, why can’t you possess ecstasy, cocaine, opium or even heroin for the same purpose? I suppose the major difference is that you can’t cultivate these substances; unless you are really patient and start growing coca plants or poppies. Keep an eye out for a change in your neighbour’s gardening habits…

As mentioned earlier, I think that this judgment is the first step toward the complete legalisation of marijuana.  If it is not illegal for you, as an adult, to grow your own cannabis, why should it be illegal for you to buy cannabis? Surely that discriminates against those who don’t like gardening?

Personally, I don’t think that the complete legalisation of marijuana is a bad thing. Because with legalisation will come regulation. Quality will be controlled to ensure that the packets aren’t bulked up with Khakibos or earl grey tea; and let the marijuana smokers pay taxes on their weed like the smokers and drinkers do. Also, the packaging will then have the same warnings that tobacco and alcohol products have.

I happen to agree that marijuana, in moderation, is no more harmful than alcohol and tobacco. I also believe that to regulate it is preferable to criminalising it. The only thing I have a difficulty with is that I can have one or two drinks and still be sober. I don’t know how many joints it takes to make you stoned, but I don’t expect that it is very many. If there is not a breathalyzer test for driving under the influence of cannabis, the traffic authorities had better find one quickly.

At this stage the only legal way to get your hands on marijuana is to grow it yourself. So, we are not likely to see Amsterdam style coffee shops on the streets of Cape Town and Sandton. But I don’t think that they are far off…

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