Members of the Rastafarian community smoke marijuana outside the Constitutional Court in Johannesburg before it decriminalised cannabis for recreational use by adults at home. Picture: ALAISTER RUSSELL/ SUNDAY TIMES
Members of the Rastafarian community smoke marijuana outside the Constitutional Court in Johannesburg before it decriminalised cannabis for recreational use by adults at home. Picture: ALAISTER RUSSELL/ SUNDAY TIMES

The Constitutional Court opened the gates on Tuesday for adult South Africans to legally grow and use cannabis privately, while still criminalising commercial use despite its potential economic benefits.

The landmark judgment by deputy chief justice Raymond Zondo unanimously declared that sections of the Drugs and Drug Trafficking Act and the Medicines and Related Substances Control Act are inconsistent with the constitution.

The court suspended the order of invalidity for 24 months, to allow parliament to deal with the necessary legislation.

Parliament has already said the judgment could entail the introduction of a new bill, or the executive introducing one to give effect to the order.

The court heard an application for leave to appeal, as well as a confirmation application in November 2017 of a judgment by the High Court in Cape Town, which declared the same sections unconstitutional, saying the right to privacy was at the heart of the case.

The top court went one step further than the high court by not limiting the recreational use of cannabis to a person’s private dwelling by saying the right to privacy was not confined to a home or private dwelling.

Through a reading-in of the two acts, the court however ensured it would neither be a criminal offence to use or be in possession of cannabis for private consumption, nor to cultivate it in a private place for personal consumption.

The court did not specify how much cannabis would be allowed, with Zondo saying doing that would have breached the doctrine of the separation of powers. He left it up to parliament to establish the amount that would constitute personal use. The department of agriculture, forestry & fisheries noted the ruling, saying it recognised the developments around the world where various countries were decriminalising cannabis either for medicinal use, recreational purposes, or for both, citing Canada, Uruguay, the Netherlands, Panama, Lesotho and Zimbabwe.

The Constitutional Court has ruled in favour of the private use of cannibis.

“Some US states where the use of the plant has been legalised show a huge potential for job creation in both the medical production space and in the recreational space,” the ministry said. “In 2017 alone, it accounted for over 100,000 active jobs with billions of US dollars contributing to their economy,” it said.

It said in terms of the current legislation, the mandate for regulating hemp lies with the department of health as well as the department of justice & constitutional development, and that it has mainly engaged these two departments so far.

The department is leading the interdepartmental team that is developing a new regulatory framework for hemp, it said.

The IFP has championed the legalisation of medical marijuana by introducing the Medical Innovation Bill, which in 2017 opened the doors for citizens to apply to the South African Health Products Regulatory Authority for a licence to grow, cultivate and manufacture cannabis for medicinal purposes, the judgment noted.

“It is our hope that the unanimous judgment handed down today by the full bench of the ConCourt will also see the fast-tracking of legislation for the commercialisation of hemp in our country which will boost the economy and create jobs,” IFP chief whip Narend Singh said.

IFP spokesperson Mkhuleko Hlengwa said there was a need over the next 24 months to “drill down to the entire value chain of what this judgment means now, so that it can be regulated”.

He said a controlled environment would be necessary, especially when looking at the economic spin-offs. “We need to pull it out of the shadows, put it on the table and create an environment that everybody will understand,” Hlengwa said.

Economist Mike Schussler estimates that the cannabis industry could add 0.4%-0.5% to SA’s economy, if fully legalised, considering what the tobacco industry accounts for, as the industry would then be taxable.

Schussler said as the court only legalised private use and private growing, the economic impact would be less than a fully legalised industry, but that even at this stage police resources would be redirected to fight other, serious crimes.

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Read the full judgment by deputy chief justice Ray Zondo here: