Police leadership has issued a directive to all units – including the Hawks – to immediately cease arresting people for the private use, cultivation and possession of cannabis, the Mail & Guardian reports.
The directive, which the Mail & Guardian has reportedly seen, has been sent to all officers, and will be in effect until Parliament decided what to do about the country’s cannabis laws.
On 18 September the Constitutional Court upheld that it should be legal for citizens to cultivate and consume marijuana for personal use in private.
As part of the judgement deputy chief justice Raymond Zondo took the view that it should be left to Parliament to decide on the quantity of cannabis that an adult person may use, possess or cultivate for it to amount to ‘personal use’.
In determining ‘personal use’, the court held 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, but a court will ultimately decide whether the person was in possession of cannabis with the intent to deal, or for their own personal 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 – but if there was any doubt, they should rather not move to arrest.
According to Neil Kirby, director and head of healthcare and life sciences at Werksmans Attorneys, the judgement represents a fundamental shift in the manner in which South African law views cannabis and its social utility.
“While the judgement is premised on the right to privacy in the Bill of Rights, the judgement also represents an arguably global shift in the view of cannabis and its use in society especially as a potential medicine,” he said.
However, the judgement contains certain limitations, Kirby said, more particularly when it comes to dealing in cannabis, which the judgement does not endorse through legalisation.
“The Constitutional Court considered the purchasing of cannabis as ‘a serious problem in this country and the prohibition of dealing in cannabis is a justifiable limitation of the right to privacy’,” he said.
“Therefore, while the judgement goes some way to decriminalising formally the use of cannabis by an adult in private, certain aspects of the cannabis supply chain remain unlawful – some may view that uncomfortable state of affairs as a severe limitation on their ability to use cannabis.
“While the purchasing of cannabis remains an illegal activity, the cultivation of cannabis in private is lawful. The practical effects of the judgement, in respect of the consumption of cannabis, thus remain arguably contentious,” Kirby said.
The Constitutional Court has provided for a period of twenty-four months for the necessary legislative amendments to made.
Pending the amendments in law, the use, possession and cultivation of cannabis by an adult in a private place is allowed. Should the necessary amendments to the legislation concerned not be forthcoming within the prescribed twenty-four month period, or an extended period as permitted, the order of the Constitutional Court will become final.