Garry Hertzberg, practising attorney at Dewey Hertzberg Levy and a host of the ‘Laws of Life with Garry Hertzberg’ on Cliffcentral.com writes:
To begin with, the High Court does not make law, only parliament can do this, but what the court can do is declare a law or a part of a law to be invalid. They have this power because the Constitution grants it and actually mandates that a court must declare any law to be invalid if it is inconsistent with the Constitution.
In this case, the court was asked to look at certain sections of the Drugs and Trafficking Act, which deals with the use and possession of drugs to see if they passed the Constitutional test as they related to dagga in particular. The argument was that an adult has the right to privacy and the right to make their own decisions and that the use or possession of cannabis in their private dwelling does not hurt anyone besides the user.
The court considered the international views on cannabis, particularly the developments in America and agreed that there has been a clear shift in the perception that criminalisation of cannabis is not an effective method of preventing harm, and that the limitation of the right is not justifiable in open and democratic societies.
After deliberating, the Western Cape Court boldly declared the sections which criminalise possession or cultivation of dagga for personal use by an adult inside a private property, to be invalid.
This does not mean that cannabis is now legal, it just means that growing it, possessing it and using it personally in a private dwelling is allowed. Possession and use outside of a private home, or growing with the intent to distribute, or dealing in cannabis, is a criminal offence and this ruling does not change that.
The declaration is suspended for 24 months to allow the lawmakers to amend the Act, but in the meantime, people charged with possession of dagga in a private dwelling will be able to raise the defense that it is for personal use.
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(This article first appeared in the Sandton Chronicle)