The Constitutional Court has ruled that it is legal to be in possession of dagga in your private capacity.
“The right to privacy is not confined to a home or private dwelling. It will not be a criminal offence for an adult person to use or be in possession of cannabis in private space,” said Deputy Chief Justice Raymond Zondo.
The judgment did not specify how many grams of cannabis can a person use or have in private.
The ruling follows a Western Cape High Court judgment that the possession, cultivation and use of dagga for private use was allowed.
Zondo took the view that it should be the left to Parliament to decide on the quantity of cannabis that an adult person may use, possess or cultivate in order for it to amount to “personal use”.
He said that a police officer would have to consider all the circumstances, including the quantity of cannabis found in an adult person’s possession.
If the police officer, on reasonable grounds, suspects that the person concerned is in possession of that cannabis for dealing and not for personal consumption, the officer may arrest the person.
The courts will ultimately decide whether the person was in possession of cannabis with the intent to deal or for own consumption.
Judge Zondo said there were will be cases where it is obvious that the cannabis being held is intended for personal use, and cases where it’s obvious that it is not. For the uncertain situations, police officers need to apply their minds.
According to Zondo, the matter should be treated the same as a case of negligent driving or where someone is suspected of holding stolen goods – where the police officer’s reasonable view of the situation needs to balanced with the accused’s account.
“If a police officer finds a person in possession of cannabis and he or she thinks it is not for personal consumption, he or she will ask the person such questions as may be necessary to satisfy himself or herself whether the cannabis he or she is in possession of is for personal consumption,” Zondo said.
“If, having heard what the person has to say, the police officer thinks that the explanation is not satisfactory, he or she may arrest the person. Ultimately, it will be the court that will decide whether the person possessed the cannabis for personal consumption.”
For the cultivation of cannabis, he says the exact same rules should apply.