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PRIVATE USE OF CANNABIS IN SOUTH AFRICA: THEN AND NOW

by

ONGEZIWE NGETU

(61136905)

Submitted in partial fulfilment of the requirements for the degree

LLB

In the

SCHOOL OF LAW

UNIVERSITY OF SOUTH AFRICA

SUPERVISOR: DR L PIENAAR

(ASSIGNMENT 02: 637538)

2020

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ACADEMIC HONESTY DECLARATION

1. I understand what academic dishonesty entails and am aware of Unisa’s

policies in this regard.
2. I declare that this assignment is my own, original work. Where I have used
someone else’s work, I have indicated this by using the prescribed style of
referencing. Every contribution to, and quotation in this assignment from the
work or works of other people has been referenced according to the prescribed
style.
3. I have not allowed, and will not allow, anyone to copy my work with the intention
of passing it off as his or her own work.
4. I did not make use of another student’s work and submit it as my own.

NAME: ONGEZIWE NGETU

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SIGNATURE: O.Ngetu

STUDENT NUMBER: 61136905

MODULE CODE: LME3702

DATE: 17 SEPTEMBER 2020

RESEARCH THEME SELECTED: USE OF CANNABIS – HISTORICAL APPROACH

MARK RECEIVED FOR ASSIGNMENT 01:

MARK RECEIVED FOR ASSIGNMENT 02:

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CONTENTS:

ACADEMIC HONESTY DECLARATION................................................................... 2

1. WORKING TITLE ................................................................................................ 4
2. RESEARCH INTRODUCTION ............................................................................ 4
3. PROBLEM STATEMENT .................................................................................... 4
4. HYPOTHESIS...................................................................................................... 5
5. POINTS OF DEPARTURE AND ASSUMPTIONS .............................................. 6
6. CONCEPTUALISATION OF CENTRAL RESEARCH THEMES ........................ 6
6.1 Drugs and Drugs Trafficking Act ................................................................... 6
6.2 Cannabis Judgment ...................................................................................... 7
6.3 Private use .................................................................................................... 7
6.4 Adult .............................................................................................................. 7
7. PROPOSED CHAPTER OUTLAY ...................................................................... 8
8. PROJECTED TIME-FRAME FOR SUBMISSION ............................................... 9
9. DESCRIPTION OF RESEARCH METHODOLOGY ............................................ 9
10. PREPARATORY STUDY ................................................................................. 9
11. CONCLUSION ............................................................................................... 11
12. BIBLIOGRAPHY ............................................................................................ 12

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1. WORKING TITLE

PRIVATE USE OF CANNABIS IN SOUTH AFRICA: THEN AND NOW.

2. RESEARCH INTRODUCTION
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This research product intends to provide the historical developments pertaining to the
ban on the use of cannabis that existed in South Africa and to consider the most recent
judgment by the Constitutional Court that changed the landscape on the private use
of cannabis in South Africa.

In order to uncover the historical and current standing of cannabis use in South Africa,
the researcher critically analyses the Drugs and Drugs Trafficking Act1, the Medicine
and6Related Substance Control Act2 5and consider relevant case law such as the
Prince3 case and importantly the Constitutional Court judgement that changed the
landscape on the private use of cannabis in South Africa.
7

The intention of this research is to provide an update on the historical and current
status quo pertaining to the legalisation of the private use of cannabis in South Africa.
Furthermore, to the above, this research is a review on the efforts in South Africa for
the legalisation and decriminalisation of cannabis and its use for both recreational and
medical purposes.

3. PROBLEM STATEMENT

The purpose of this research is to explore the historical developments that led to the
constituality of the prohibition and criminalisation of the use of cannabis by adult
persons in their private dwellings, to assess the previous legal challenges relating to
cannabis use and the most recent Constitutional Court judgement that declared the
legalisation of the private use of cannabis in South Africa. The research will also

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Drugs and Drugs Trafficking Act 140 of 1992.
2 Medicines and Related Substances Control Act 101 of 1965.
3 Prince v President of the Law Society of the Cape of Good Hope and others [1998] JOL 2202 (C).

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explain the historical development of cannabis in South Africa during the periods of
1891 until the judgment issued the Constitutional Court in 2018. The research will
include aspects that incorporate the following:
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➢ Was the prohibition of cannabis in South Africa and unconstitutional act?

➢ What are the implication for society with the cannabis judgment passed?4

4. HYPOTHESIS

As this research proposal is embarking on a historical research, there is a research

aim rather than a hypothesis. The research aim is to consider the ban that used to
exist in South Africa and consider the Constitutional Court that legalised cannabis use
in South Africa. The researcher intends to explore the above in order to reveal the
current status quo on the private use of cannabis in South Africa.

In South Africa, the authorities have over many years consistently opposed any
legislation or decriminalisation of cannabis as South Africa has a long history of
criminalising cannabis use in any form.5 One of the interesting aspects of cannabis
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criminalisation was the case of Gareth Prince.6 Through critical investigation of
applicable legislation, the constituality of the ban of cannabis under certain provisions
of the Drugs Act and Medicines Act was challenged in the High Court by three
individuals in separate cases, it was submitted that the provision the Drugs Act that
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prohibits the use and cultivation of cannabis by an adult in private for personal
consumption violate section 147 – the right to privacy.

In relation to the above, if the abovementioned challenges against the provisions that
regulated the ban of cannabis had not declared certain provisions of either the Drugs
Act and the Medicine Act
12 unconstitutional, then the Constitutional Court judgment
would possibly not have consolidated this matter that resulted in the legalisation of
cannabis use in South Africa.

4 Stansfield & Yeats https://www.golegal.co.za/cannabis-judgment-south-africa/ (Date of use: 07

September 2020).
5 Minaar 2015 Acta Criminologica: African Journal of Criminology & Victimology 142.
6 Prince v President of the Law Society of the Cape of Good Hope & others [2002] JOL 9305 (CC).
7 Of the Constitution of the Republic of South Africa, 1996.

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5. POINTS OF DEPARTURE AND ASSUMPTIONS

The researcher will analyse the topic from a constitutional law perspective. The
research method that will be used in the research will be the historical approach. It is
a research that uses primary and secondary sources, and this includes relevant case
law, legislation, and electronic sources.

The research aims at analysing the historical developments pertaining to the ban of
cannabis in South Africa, the changes that the judgment by the Constitutional Court
brought on the private use of cannabis in South Africa, the implications for society as
a result of the judgment and whether the prohibition of cannabis in South Africa was
an unconstitutional act. These concepts will be covered in the research because the
researcher seeks to provide an update on the current status quo pertaining to the
legalisation of the use of cannabis in South Africa. As this research will take the
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historical approach it will exclude information before the year 1891.

6. CONCEPTUALISATION OF CENTRAL RESEARCH THEMES

6.1 Drugs and Drugs Trafficking Act

According to section 4(b), read together with the Medicine Act8, of this act provides no
person shall use or have any dangerous dependence-producing substance or any
undesirable dependence inducing substance.9 These acts prohibits and criminalises
the use, possession, purchase and cultivation of cannabis by any individual in South
Africa and have contributed to the historical ban of cannabis use in South Africa.

8 Medicines and Related Substances Control Act14 101 section 22A (9)(a)(i).
9 Drugs and Drug Trafficking Act 140 section section 4(b) and 5 (b).

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6.2 Cannabis Judgment

The Constitutional Court handed out its judgment10 in the consolidated matter of three
individuals that had separately challenged the prohibition of cannabis use in South
Africa. This judgment effectively means that adult persons are now permitted to use,
have in possession, and cultivate cannabis in a private place for consumption.11

6.3 Private use

In our law the right to privacy is entrenched in section 14 of the Constitution. The right
to privacy means that one has the right to live their life with minimal interference.12 The
Constitutional Court judgment expanded private use, possession or cultivation of
cannabis beyond a home or private dwelling as the sphere of privacy does naturally
extend to for example, one’s car or handbag and searching any of those would be an
infringement of section 14.13

6.4 Adult

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The Children’s Act of 2005 clarifies that any person under 16, unless married or
emancipated by order of court, is a child and any person over 18 is an adult.

For the purposes of this research the word adult is any person over the age of 18 years
old.

10 Minister of Justice and Constitutional Development and Others v Prince; National Director of Public
Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others v Acton and
Others [2018] ZACC 30 (Cannabis judgment).
11 Stansfield & Yeats https://www.golegal.co.za/cannabis-judgment-south-africa/ (Date of use: 07

September 2020).
12 Bernstein v Bester [1996] ZACC 2, 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC).
13 Constitution of the Republic of South Africa, 1996.

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7. PROPOSED CHAPTER OUTLAY

This research will be set in four chapters, which are:

Chapter 1: Conceptualisation of research problem and contextualisation of

research themes

Chapter 1 introduces terms and concepts central to the research, as well as the
researcher’s hypotheses. The most important themes of the research being the
historical development of the cannabis ban and the changes the legalisation and
decriminalisation of cannabis brought in South Africa. Chapter 1 further includes and
introduction to the research and outlines the methodology of the research product.

Chapter 2: Analysis of the historical developments pertaining to the ban of

cannabis use that existed in South Africa

In this chapter the researcher will examine relevant case sections of appropriate
legislation as well as relevant case law with regards to the prohibition and
criminalisation if the use of cannabis by adult persons in their private dwellings. This
chapter aims to highlight the features of all applicable legislation which includes the
Drugs and Drug Trafficking Act 140 of 1992 as well as the Medicines and Related
Substances Control Act 101 of 1965.

Chapter 3: Decriminalisation and legalisation of the private use of cannabis in

South Africa

Chapter 3 examines the much-anticipated judgment handed down by the

Constitutional Court on 18 September 2018. This chapter further considers the change
that this judgment brought on the private use of cannabis in South Africa.

Chapter 4: Conclusions and recommendations

Chapter 4 presents the researchers conclusions resultant from previous chapters. This
chapter further aims to fully provide an update on the current status quo pertaining to
the legalisation of the private use of cannabis in South Africa.

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8. PROJECTED TIME-FRAME FOR SUBMISSION

This research product intends to be submitted for comment according to the timeline
of submission dates provided below.

CHAPTER: SUBMISSION DATE: COMMENTARY:

Chapter 1 30th September 2020 15st October 2020
Chapter 2 30th September 2020 15st October 2020
Chapter 3 15st October 2020 30th October 2020
Chapter 4 15st October 2020 30th October 2020
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Final Product 24th November 2020

9. DESCRIPTION OF RESEARCH METHODOLOGY

The researcher will make use of a historical approach as a method to achieve the
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objective of this research. The research will date back to period of 1891 until the most
recent judgment handed by the Constitutional Court in 2018 which have contributed
to both the prohibition and legalisation of cannabis use in South Africa.

The research uses a desk-top method of research. The focus is on both primary and
secondary research sources, literature includes legislation as well as case law.

10. PREPARATORY STUDY

Journal Articles

Minaar 2015 Acta Criminologica: African Journal of Criminology & Victimology 142 –
This journal article is a review on the legalization and discrimination of cannabis in
South African experiences.

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Case Law 19

Bernstein v Bester [1996] ZACC 2, 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC) –
This case is an example where the right to privacy and its limitations were explored.

Minister of Justice and Constitutional Development and Others v Prince; National

Director of Public Prosecutions and Others v Rubin;
20 National Director of Public
Prosecutions and Others v Acton and Others [2018] ZACC – This consolidated matter
of three individuals whose cases led to the Constitutional Court regarding the
legalisation of cannabis use in South Africa. This is also known as the Cannabis
judgment.

Prince v President of the Law Society of the Cape of Good Hope and others [1998]
JOL 2202 (C) – In this case Prince applied to the Law Society of the Cape of Good
Hope to register his contract of community service, the law society refused.

Prince v President of the Law Society of the Cape of Good Hope & others [2002] JOL
9305 (CC) - In 2001 Prince sued in the Constitutional Court the President, Secretary
and the Law Society the Cape of Good Hope to be admitted as an attorney however,
in his application to register with the Law Society he had admitted that he had two
previous convictions for the possession of dagga and the society refused again.

Legislation

Drugs and Drugs Trafficking Act 140 of 1992 – This act helped shape the historical
developments that led to the ban of cannabis use in South Africa.

Children’s Act 38 of 2005 – Section 17 in this act provides clarity on which age one is
considered an adult. This definition is useful in this research
21 as to determine who is
now allowed to use cannabis for private use in South Africa.

Constitution of the Republic of South Africa, 1996

22 – Section 14 of this act provides us
with the definition of the right to privacy and the limitations it has.

Medicines and Related Substances Control Act 101 of 1965 - This act helped shape
the historical developments that led to the ban of cannabis use in South Africa.

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Internet Sources

Stansfield & Yeats https://www.golegal.co.za/cannabis-judgment-south-africa/ (Date

of use: 07 September 2020) - This internet source provided commentary on the
Constitutional Court Judgment that legalized and decriminalized the use of cannabis
in South Africa. The source also provides a brief historical background on the use of
cannabis in South Africa that brought about the judgment.

11. CONCLUSION

South Africa has had a long of criminalising cannabis use in any form. Over the years
the prohibition of cannabis use has been legally challenged in our courts and there
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has been a rise in the cannabis advocacy in South Africa. The year 2018 brought
about the decriminalisation of cannabis in South Africa when Chief Justice Raymond
Zondo ruled that adults may posses or use cannabis for personal consumption. For
certain religious groups and persons who make use of cannabis for medical reasons,
this judgment was seen as a victory for various constitutional rights including the right
to freedom of religion and the right to privacy.14 Although uncertainty still exists as to
how far-reaching the effects of the ruling will be.

14Stansfield & Yeats https://www.golegal.co.za/cannabis-judgment-south-africa/ (Date of use: 07

September 2020).

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12. BIBLIOGRAPHY

Journal Articles

Minaar 2015 Acta Criminologica: African Journal of Criminology & Victimology 142.

Minnaar, Anthony. "The legalisation and decriminalisation of marijuana

(dagga): a review of American and South African experiences." Acta
Criminologica: African Journal of Criminology & Victimology 2015, no. Special
Edition 3 (2015): 142.

Case Law

Bernstein v Bester [1996] ZACC 2, 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC)

Minister of Justice and Constitutional Development and Others v Prince; National

Director of Public Prosecutions and Others v Rubin; National Director of Public
Prosecutions and Others v Acton and Others [2018] ZACC 30 (Cannabis judgment)

Prince v President of the Law Society of the Cape of Good Hope and others [1998]
JOL 2202 (C)

Prince v President of the Law Society of the Cape of Good Hope & others [2002] JOL
9305 (CC)

Legislation

Drugs and Drugs Trafficking Act 140 of 1992

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Children’s Act 38 of 2005

Constitution of the Republic of South Africa, 1996

Medicines and Related Substances Control Act 101 of 1965

Internet Sources

Stansfield & Yeats https://www.golegal.co.za/cannabis-judgment-south-africa/ (Date

of use: 07 September 2020)

Stansfield G and Yeats M “The Cannabis judgment – Implications for society

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and the workplace” https://www.golegal.co.za/cannabis-judgment-south-africa/
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(Date of use: 07 September 2020)

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 RESULTS
Total = 57 / 100 (57%)
 COMMENTS
1 LME3701 Marking rubric Oct 2020.pdf
2 Title must be clear: What is meant by "Then and now"?
3 Must be signed
4 Set the tone: what is the issue?
5 Correct citation of legislation required
6 Cite cases correctly.
7 Update on historical developments? Clarify
8 Reported citation required
9 Unclear
10 Correct citation?
11 of what?
12 Motivate
13 Historical development period cannot only now be identified. First reference to 1891, rest of discussion
has been on present developments.
14 Section 4(b) of the .....
15 A source cannot be a theme
16 Explain relevance
17 Be realistic with time lines
18 This is a long wide period. Reconsider.
19 Explain the relevance of each source to the research.
20 Reported citations required
21 What about sec 28 of the Constitution?
22 Relevance to research?
23 DCJ?
24 No Constitution? Additional sources required
25 Referencing
26 Overall impression
27 Format and lay out