In every society there are rules governing the safety and health of each individual, and the society more generally.
And health and safety issues include what persons may eat, drink and smoke; and where and when they undertake those activities. The reach of the rules concerning these issues will naturally depend on how the activity affects others. So, it may be legitimate for a rule to ban all drinking of whisky within school premises and hospitals. But it may not be fair and just to ban the drinking of whisky throughout South Africa; such an all-out ban may constitute a violation of a person’s autonomy.
The important questions to ask and answer are: who decides what substances may be bought, sold and used freely without any restrictions at all? And how do they decide?
For example, if it is the President who is given the power to decide, could he lawfully decide to prohibit the sale and use of all coffee? If the President enacted such a ban what could unhappy coffee loving citizens do about it? Prior to the introduction of the Constitution in 1994 there was almost nothing that could be done. Parliament reigned supreme, and as long as it followed the required procedures the laws it enacted could not be challenged. If people were unhappy with the laws parliament chose to enact, then they would have to wait for the next election to vote the governing party out. But the introduction of the Constitution as the supreme law has changed that. Now all law and conduct is open to scrutiny by the courts.
In a 1997 Constitutional Court case three employees, Ms Lawrence, Ms Solberg and Mr Negal, of Seven Eleven chain store of cafes were criminally charged with contraventions of the Liqour Act.
The prosecution’s case against Ms Lawrence was that she sold wine at a Seven Eleven store during a week day, but after closing hours; the case against Ms Solberg was that she sold wine at a Seven Eleven store on a Sunday, which is a closed day for sales of wine by holders of grocers’ wine licences; and the case against Mr Negal was that he sold cider and beer at a Seven Eleven store despite the fact that the liquor licence of the store permitted only the sale of table wine.
The employees accepted that they committed the conduct complained of. But they said the Liquor Act’s prohibitions violated their rights.
Parliament enacted the Drugs Act to deal with the prohibition of the use of, or the dealing in drugs. Parliament allowed the Minister of Health to elect which drugs are completely prohibited, which may manufactured and sold and on what conditions. The drugs are divided into undesirable, dangerous dependence producing substance, and other categories. Recently, Mr Gareth Prince, a Rastafarian attorney, claimed that the absolute prohibition on the manufacture, sale and use of cannabis violated a number of his constitutional rights, including his freedom of religion. But the Constitutional Court focused on his right to privacy.
The Constitutional interrogated the government’s reasons for the marijuana ban. Was there medical evidence that suggested all individuals required to be protected from the dependence producing substance? What had other countries done in respect of dagga? Did South Africa have international obligations to other States to counter drug trafficking and its harmful consequences? The Constitutional Court, in assessing whether the violation of the right to privacy was justified, heavily relied on a statement by the South African Central Drug Authority that: “among alcohol, tobacco and cannabis “alcohol causes the most individual and social harm …” And also the expert medical opinion of a Dr Gous.
In summary she stated: (a) the psychoactive effects of cannabis, known as a ‘high’, are subjective and can vary, based on the person and the method of use…. (b) the most common unpleasant side-effects of occasional cannabis use are anxiety and panic reactions. (c) chronic heavy cannabis smoking is associated with increased symptoms of chronic bronchitis, such as coughing, production of sputum and wheezing. Lung function is significantly poorer and there are significantly greater abnormalities in the large airways of marijuana smokers than in non-smokers. (d) the short-term effects of cannabis use on the cardiovascular system can include increased heart rate, dilation of blood vessels and fluctuations in blood pressure. The cardiovascular effects of cannabis are not associated with serious health problems for most young, healthy users. Cannabis use by older people, particularly those with some degree or coronary artery or cerebronvascular disease, may pose greater risks. (e) cannabis use in pregnancy is associated with restrictions in the growth of the foetus, miscarriage and cognitive deficits in offspring. (f) although tobacco, alcohol and prescription drugs also have harmful effects, research has shown beyond reasonable doubt that their effects are far less than those of cannabis on the user. (g) the harmful effects caused by cannabis are incomparable to food, alcohol and tobacco. The harmful effects of cannabis have been well documented. This medical evidence was not sufficient to justify the limitation of rights.
When it came to dealing in dagga the Court stated: “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.” The effects of the Prince judgment is that it is no longer a criminal offence for an adult to use or be in possession of cannabis in private for his or her own personal consumption in private. That means that there is be no law governing possession of cannabis by an adult in private for his or her own personal consumption in private that makes such possession a criminal offence.
But the Court accepted that it was ultimately for Parliament, and not the courts to finally determine the breadth and width of the laws relating to cannabis. The Court gave Parliament 24 months (to 18 September 2020) to rectify the constitutional defects in the law. In the 24 month period the Court set out the dagga regime to be:
(a) an adult person may, use or be in possession of cannabis in private for his or her personal consumption in private;
(b) the use, including smoking, of cannabis in public or in the presence of children or in the presence of non-consenting adult persons is not permitted;
(c) the use or possession of cannabis in private other than by an adult for his or her personal consumption is not permitted; and
(d) The cultivation of cannabis by an adult in a private place for his or her personal consumption in private is no longer a criminal offence.
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