Dagga ruling gives adults freedom

Professor Rosaan Kruger, Dean of the Rhodes Faculty of Law, said the Constitutional Court’s decision regarding the possession, cultivation and use of cannabis in one’s private capacity recognised South Africans’ rights to live with minimal interference.

“The court built on its existing privacy jurisprudence to bring SA law in relation to decriminalisation of cannabis for personal use in line with the legal developments in other countries,” said Kruger.

“Importantly, the court’s judgment recognises the agency of adults to make their own choices and in any constitutional democracy, respect for agency is foundational.

“That does not mean that anything goes, but it means that the court and the constitution recognise our rights to live our lives with minimum interference.”

Kruger said the finding essentially meant that adults who wished to could possess, use or grow cannabis, in private for their personal use, without facing arrest or a criminal charge.

However, where non-consenting adults or children are present, dagga may not be used. And while adults may grow dagga for personal use, this “does not mean that one cannot be arrested for possession of cannabis – if a person possesses or grows for purposes of dealing, that remains an offence, and that may attract arrest and eventual prosecution”.

“The state must prove their case of cultivation and possession for purposes of dealing beyond a reasonable doubt.

“Decriminalisation simply means that the criminal sanction has fallen away. So if one has cannabis in one’s possession for personal use, that is not a crime [as it was on Monday].

“Legalisation typically involves not only decriminalisation, but also regulating the supply side. It is noteworthy that dealing [buying and selling of cannabis] remains a criminal offence,” she said.

Kruger also said those already serving time should not bank on their convictions being overturned.

“The [Constitutional Court] made it clear that the declaration will not have retrospective application.

“So convictions made under the old law will stand.”