Following the Western Cape High Court's landmark ruling last month to legalise the use of marijuana (dagga) in private homes, the question remains: Where can one light up without the fear of prosecution?
In his ruling, Judge Dennis Davis made it legal for adults to use and be in possession of marijuana in their private homes. He made his ruling after Gareth Prince, Jeremy Acton and Jonathan Ruben argued that the Drugs and Drug Trafficking Act, which criminalises the use and possession of dagga, was a violation of the right to equality, dignity and freedom of religion.
In his ruling, however, Judge Davis considered another part of the Constitution – that of the right to privacy – and declared sections of both the Drugs and Drug Trafficking Act and Medical and Related Substances Act unconstitutional.
Two other High Court judges concurred with Judge Davis, who found that prohibitions in the law, in terms of the use, possession, purchase and/or cultivation of dagga in private homes, were inconsistent with the Constitution and that people were free to do as they pleased in their own homes. He further gave Parliament 24 months to amend these acts and bring them in line with the Constitution. Judge Davis also ordered that all prosecutions, falling within the invalidated provisions, must be stayed during this 24-month period.
Taken at face value, Judge Davis's ruling means that an accused person might raise the right to privacy as a legal defence. The matter is, however, not that simple.
After reading over Judge Davis' ruling, Louis Trichardt-based attorney Ms Vanessa Grundlingh said that, at this stage, one could grow marijuana at one's private home, provided that one is an adult and that it is for one's own use. "You can also buy it in your own house – although it is not clear how one will buy it without a 'seller'," said Grundlingh.
What also makes the interpretation of the ruling problematic, said Grundlingh, is that it is not clear how far the "seller" will enjoy protection. "I doubt that there will be any," said Grundlingh. In a criminal case, she explained, the National Prosecuting Authority (NPA) would need the buyer to be the complainant in a case and he/she might not necessarily testify against the seller.
Grundlingh said that the amount for the term "personal use" is also not properly defined. "…it can therefore be one plant or a hectare – if you can argue that you are cultivating for the lean months to come," said Grundlingh.
Legally, the ruling means that someone charged with the illegal possession of dagga will have a defence if they can say (and prove) that they are an adult, that they and the dagga were found in their own personal residence and that it was cultivated, purchased or used for personal consumption. Presently, depending on the NPA's new directives, an accused will still have to go to court to argue his or her defence. "If the NPA wants to prove that you trade the marijuana for purposes other than personal cultivation or for another purpose, you can still be prosecuted," explained Grundlingh. "You also have no protection if you are not at your home," she added.
In a case where the police want to search a private dwelling for dagga, the right to privacy (Judge Davis's original order) can be used as a legal defence. The police, said Grundlingh, cannot claim that it was an urgent search and must apply for a warrant first.
In so far as the newspaper could determine from local courts and the police, they have not received any directives on how to proceed with dagga-related cases. Both are of the opinion that directives will be issued once Judge Davis's ruling has been either appealed or validated by the Constitutional Court. All such directives are supposed to come from their respective head offices.