Decriminalisation of cannabis for personal use in South Africa

Résumé 0

In 2002 the South African Constitutional Court was faced with a case challenging the constitutionality of the legislation criminalising cannabis use. The appellant argued that the criminalisation infringed the right to religion. The Court, however, ruled that the legislation did not constitute a constitutional infringement. It is worth noting that the African Commission and the Human Rights Committee previously have dealt with this issue, in particular, the implications of South African legislation on cannabis for international human rights law. Just as the Constitutional Court, the Commission and Committee did not find a violation. In 2017 the Western Cape Division of the High Court of South Africa was faced with another application, this time challenging the constitutionality of the legislation criminalising the personal use of cannabis by adults in the privacy of their home. The Court in this instance declared the prohibition of the use of cannabis by adults in the confines of their private dwellings to be inconsistent with the Constitution of South Africa and declared the provisions to be invalid to that extent. The decision of the High Court was confirmed by the Constitutional Court in 2018, with the latter Court ruling, amongst others, that 'the right to privacy entitles an adult person to use or cultivate or possess cannabis in private for his or her personal consumption'. This decision raises two questions, namely, what inspired the Court in the 2018 case to arrive at a decision different from that of 2002? In light of the fact that South Africa is a party to the three binding international drug treaties which, among others, create a presumption upon states to criminalise possession and cultivation for personal use, the second question is what the implications of the 2018 decision are for South Africa's international law obligations. Answering these two questions forms the crux of this article.