Questions

The Constitutional Court judgment legalizing cannabis consumption in private and cultivation for private consumption has me puzzled.

The judgment is clear that the only cannabis that is legal and permissible is that which is grown in private for private consumption by the person growing the cannabis. This means that it is not permissible to grow for anyone else. 

How much cannabis can a person legally grow? It depends on what their explanation for the cannabis is and how it fits in with the grower's personal consumption. The ultimate arbiter of if the cannabis is for personal consumption will be the court. Evidence of prior consistent use of cannabis will prove extremely useful in explaining larger amounts of cannabis. Best you keep those joint stubs and old dirty bongs - they will prove to be invaluable evidence.

As the amount a person can legally grow depends on their personal consumption, those who don't consume cannabis are excluded from growing. If you can't explain away the plants in terms of your personal consumption you are going to be prosecuted for dealing in drugs - the definition of "dealing "includes cultivation - and that has a potential fifteen year sentence.

Another factor in judging the number of plants a person is growing is the uncertainty of how much cannabis each plant will yield down to whether there will be a harvest at all. There are many things that can ruin a harvest, so the only answer to how much cannabis a plant will give is: It depends how big it grows and what issues arise during growing. While this might seem imprecise it really is the best answer. 

As mentioned above, the more a person consumes, the larger a grow a person can explain away as being for personal consumption. What the constitutional court did not say was that a person had to grow every year. A person might be growing their cannabis for their consumption for the next two years. On the other hand, bearing in mind that a crop can be a total failure, is it really so unrealistic to keep cannabis in reserve in case of such a failure?

The Constitutional Court made it clear that it was not about to decriminalize the "more serious" offence of "dealing" in cannabis. The sale and purchase of cannabis is illegal. The question that begs to be asked is WHY? The other countries and states which have legalized cannabis haven't banned the sale and purchase of cannabis. Those countries and states are taxing the serious offence of dealing in cannabis. How serious can this offence really be if other states have simply chosen to regulate the sale and purchase of cannabis?

The Constitutional Court did not consider the gifting of cannabis for no value, or the attachment of cannabis to another product which is sold and the cannabis is "free". As ridiculous as it sounds this is what the accepted position is in Washington DC where it is legal to possess cannabis, but illegal to buy and sell it. 

The idea that cannabis is "legal" when it is grown for a person's own consumption. What then of the legality of the cannabis when the grower shares a joint containing his legal home grown cannabis. The tokes the grower takes are "legal", while the tokes taken by those who did not personally grow the plant are technically illegal. Now a joint is legal or illegal depending on who smokes it?

The Constitutional Court has a special responsibility toward children and this was expressed in the the court did not want cultivation or consumption in the presence of children. While consumption in the presence of children is understandable, cultivation is not. Does the Constitutional Court not know cannabis is widely cultivated in the Eastern Cape, almost always in the presence of children. What harm is there in a child seeing a plant grow?

Children are able to access cannabis because of the black market, the market the Constitutional Court left in place. The Constitutional Court seemingly did not consider the mass invasion of privacy caused by having the police search every child in a school. 

It is a terrible idea to accuse a whole school of wrong doing and then to search them all only to find NOTHING. A mass invasion of privacy based on an adult fantasy that the kids are doing something wrong. The number of the children found in possession is always between 0 and 5. That means the vast majority of the children being searched at school are innocent and having their privacy egregiously and unnecessarily invaded. 

The Constitutional Court also did not consider the large number of young people incarcerated because of drugs. If you are concerned about young people how can you ignore the ones in actual prison. Are their interests really best catered for by South Africa's Correctional Services?

Constitutional Court creates home use and consumption exception

The Constitutional Court finally gave cannabis consumers in South African limited reason to cheer. The Constitutional Court, to a limited extent, created a legal defence to the charge of cultivating and possessing cannabis, which defence rests on such activities being "in private and for private consumption." The full judgment is here.

The state was required to provide evidence of the harms caused by cannabis. The Constitutional Court was wholly unimpressed by the paucity of the evidence produced by the state. The state failed to produce the evidence because it didn't have it. Exaggerations and half truths don't particularly impress the judges on Consitutional Court - apparently.

Thankfully, the Constitutional Court also deal the death blow to the "cannabis creates violent criminals theory" and the "gateway theory". This judgment is a serious obstacle for anyone trying to claim this nonsense.

 

Another paraphrasing of the exception created by the Constitutional Court is - Only cannabis smokers are legally allowed to grow cannabis. Non smokers are not able to claim the limited exemption and are thus at risk of prosecution for "dealing in drugs". 

The decision is not a bad one, however it is only active prospectively. If the right to privacy was infringed in instances before this judgment those cases will still have to be dealt with in terms of the old law... notwithstanding the unconstitionality of such arrests and prosecutions.

The court furthermore did not deal with the direct harms caused by the overbroad prohibition - not least of which are the hundreds of thousands of criminal records - often obtained by young people. 

The court spent some time considering whether they should set the limit or whether it should be left to the judgement of the police. The court decided that it did not want to set limits and to leave it to the police. In getting to this decision the court considered examples of legal judgement conferred in our law. The issue is that the police have no idea about growing and no knowledge of growing. As the police - literally - have no knowledge, their judgment is bound to be incredibly suspect. The court requires the grower to give a reasonable explanation for their grow, and if that fails, a bribe. This opportunity for corruption is unchecked. 

[Apologies for not posting this news earlier. It's not as if it hasn't been in the news. I have been busy... as you will no doubt see.]