Members of the Rastafarian community smoke marijuana outside the Constitutional Court in Johannesburg. Picture: ALAISTER RUSSEL/ SUNDAY TIMES
Members of the Rastafarian community smoke marijuana outside the Constitutional Court in Johannesburg. Picture: ALAISTER RUSSEL/ SUNDAY TIMES

Given what deputy judge president Raymond Zondo is hearing at the eponymous commission on state capture, it is ironic that he should be the one to hand down the unanimous judgment legalising the private use of cannabis. Presumably, he could use a toke.

Zondo’s judgment brings SA somewhat in line with international trends, which are recognising that consuming small amounts of cannabis is generally harmless, and the effect of a ban is counterproductive and invasive. One of the tricky aspects of the judgment is that essentially the same issue has come up before the Constitutional Court in Prince v President of the Law Society of the Cape of Good Hope in 2002. In this case, Prince II, as it is known, the court refused to contemplate unbanning pot.

The apex court’s judgment sought to distinguish Prince II from the current case, which was decided on the basis of the constitution’s protection of privacy. Prince II involved the question of whether the laws prohibiting the use of cannabis were contrary to freedom of religion. This is slightly disingenuous.

Prince II involved the question of whether the laws prohibiting the use of cannabis were contrary to freedom of religion. This is slightly disingenuous.

In Prince II, the court did canvass the issue of whether cannabis is addictive and found persuasive the medical evidence that it was at least potentially harmful. In the current case, however, the court posed the question slightly differently, using the argument that has been historically used by pot smokers since time immemorial: what about alcohol? Since alcohol is plainly more harmful than cannabis, why ban the one and not the other?

For the court, the deeper question was whether the harm caused, assuming there is harm, was of a sufficient magnitude to justify invading citizens’ privacy rights. In the event, the court found this time, it was not. Hence, the court found, in line with the lower court judgment, that the prohibition of cannabis is invalid to the extent that adults can use or possess it in private for their own consumption.

It did go slightly further than the lower court in finding that private cultivation for the same purpose would also be consistent with citizens’ privacy rights. And it found, contrary to the lower court, that "private" does not mean the user’s own home, but anywhere else that is not public too.

But having used exclusively the constitution’s protection of privacy as a justification, it was constrained from going further. Hence, the court did not condone the commercial cultivation of cannabis. "Dealing in cannabis is a serious problem in this country and the prohibition of dealing in cannabis is a justifiable limitation of the right to privacy. I will, therefore, not confirm that part of the order of the high court because we have no intention of decriminalising dealing in cannabis," Zondo found.

But can this be true? If the court is persuaded that the harm caused by using cannabis is insufficient to justify limiting the right to privacy, then surely the whole pack of cards comes tumbling down.

It is worth noting how fast the ground is shifting. Canada has legalised recreational cannabis, becoming the second country in the world to do so. Already, cannabis producers are zooming up the Canadian stock exchange, and Aurora Cannabis has bought rival grower CanniMed in the sector’s first $1bn takeover. Drinks makers have also been rushing to adapt to the new circumstances. Beer maker Molson Coors plans to sell cannabis-infused beer in Canada in 2018. Even Coca-Cola is reportedly considering making a cannabis-infused health drink.

The Constitutional Court referred to the growing international acceptance of cannabis consumption, but it is up to the legislature to come up with a definitive policy. The apex court’s judgment provides a basis for SA to come up to speed with international trends. It’s no real justification to argue that since SA’s police have been unable to stem the growth of the cannabis trade, it should be legal to produce it commercially.

But if it’s legal to use, it’s only a matter of time before its commercial viability will force its way on to the legislative agenda.

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