DECRIMINALISATION OF CANNABIS FOR PERSONAL USE- A COMPARATIVE

APPROACH BETWEEN SOUTH AFRICA AND NETHERLANDS

By

MAROBA MERRIAM KGANYAGO

(62270745)

Submitted in partial fulfilment of the requirements for the degree

LLB

In the

SCHOOL OF LAW

UNIVERSITY OF SOUTH AFRICA

SUPERVISOR: Dr L Pienaar

(ASSIGNMENT NUMBER 03)

2020

1
Contents
INTRODUCTION .................................................................................................................. 3
PROBLEM STATEMENT ...................................................................................................... 4
HYPOTHESIS ....................................................................................................................... 5
POINTS OF DEPARTURE AND ASSUMPTIONS ................................................................. 6
PROPOSED CHAPTER OUTLAY......................................................................................... 9
PROJECTED TIME SCALE .................................................................................................. 9
DESCRIPTION OF PROPOSED RESEARCH METHOD. ..................................................... 9
CONCLUSION .................................................................................................................... 10
BIBLIOGRAPHY ................................................................................................................. 10
ACADEMIC HONESTY DECLARATION. ............................................................................ 12

2
 1. INTRODUCTION

Cannabis in South Africa has been decriminalised by the country‟s

Constitutional Court for personal consumption by adults in private. 1 However,
laws prohibiting use outside of one‟s private dwelling and buying and selling
cannabis still remain.2 Since regulations against the purchase of products
containing cannabis still remain in effect, it also remain unclear how the ruling
can be enforced as well. Before the prohibition against the plant was lifted in
2018, there was a strong pressure on state legislature across South Africa to
legalize or decriminalize the use and possession of specified amounts of
cannabis and/ or to pass laws that allow the use of cannabis for personal
consumption. Cannabis is an annual plant of the Cannabecae family 3 and is
colloquially referred to as „dagga‟ in South Africa. It was classified in 1753 by
Swedish biologist Carl Lianneus.4 Cannabis is thought to have been
introduced to Africa by early Arab or Indian traders.5 It was already in popular
use in South Africa by the indigenous Khoisan and Bantu people prior to
European settlement in the Cape in 1652 and was traditionally used by
Basotho to ease childbirth. 6 In these tribal societies, access to cannabis was
moderated and restricted by the elders. It was used in rituals, in a highly
structured way. In 1860, Indian workers were brought in by the Natal Colony
and brought with them their habit of consumption of cannabis, which blended
well with existing African practise.7 European authorities were concerned by
this and banned it in 1870. By 1921, negative attitudes towards cannabis had
set in fully. It was fully criminalised in 1928 and the law remained this way
until 2018.

Until the recent Constitutional Court judgement of the Prince II case, the
personal use, possession and cultivation of cannabis was a criminal offence.
Cannabis was wholly criminalised in South Africa in 1928 for moral and
political reasons under the Medical, Dental and Pharmacy Act.8 The
criminalisation of cannabis use in South Africa was effected through
provisions in two Acts of Parliament namely the Drugs and Drug Trafficking
Act 140 of 1992 and the Medicine and Related Substances Control Act 101 of
1995.9 In accordance with these provisions, cannabis is one of the
1
Lindeque, Mia “ConCourt upholds ruling that private use of dagga is illegal. Retrieved November 2,
2019.
2
Nel, Mary “South Africa‟s legalization of Marijuana is a big win for privacy” Quartz Africa. Retrieved
November 2, 2019.
3
Pollio 2016 CCR 234.
4
Linnaeus “Species Plantarum 2” 1027.
5
Watt, John Mitchell (1961-01-01). “UNODC-Bulletin on Narcotics-1961 Issue 3-002”. United Nations
Office Drugs and crime. Retrieved 2017-05-02.
6
Kings, Sipho (2014-02-28) “The war on drugs sober up”. The M&G Online. Reported 2017-05-02.
7
Sensi Seeds, “Cannabis in South Africa- Laws, Use and History. Updated 6 September 2020.
8
Mental, Dental and Pharmacy Act 13 of 1928.
9
Drugs and Drug Trafficking Act 140 of 1992.

3
 substances which is prohibited for personal use. The criminalisation of
cannabis spiked a debate on whether or not the use of this substance should
constitute a criminal offence. The criminalisation of cannabis use and
possession was challenged based on the fact that it infringed the right to
practise religious beliefs among others. However in the 2018 Prince case, the
law criminalising cannabis was challenged based on the right privacy and not
the right to religion, as was in the 2017 case. Since the Constitutional Court
judgement on 18 September 2018, every citizen has the right to grow their
own cannabis in private spaces, for their own consumption in private
spaces.10

In light of the recent development and debate, this research will focus on
various issues including the reasons for the recent Constitutional Court
judgement. This research will also focus on the legislation (Drugs Act and
Medicines Act) which governed the private use of cannabis. Furthermore a
comparison between the South African legal framework and other foreign
jurisdictions will be conducted to ascertain the legal position regarding the
possession and use of cannabis.

2. PROBLEM STATEMENT
Until the recent judgement of the Constitutional Court in the Prince case, the use or
possession of cannabis was illegal in South Africa. This research dissertation is
carried out to determine whether there are in fact constitutional grounds for
decriminalising cannabis in certain circumstances eg for private use. The purpose of
this research is to further critically analyse the legal position regarding the legality of
the private use of cannabis in South Africa. Once the examination of the South
African legal position is carried out, a comparative study is undertaken to investigate
the comparison of the private use of cannabis in South Africa and the Netherlands.
The study will look at the reasons behind the decriminalisation of the use of cannabis
and the desired reform of the law in this respect. In this research we explore the
following questions:

(a) Whether the prohibition of the private use of cannabis is justified in terms of
the constitutional values.

10
Cannabis in South Africa the people‟s plant November 2019 pg 9.

4
 (b) Whether the provisions of the Drugs Act and the Medicines Act infringed the
constitutional right to privacy
(c) What made the arguments in the 2018 case stand out, with the Court arriving
at a decision different from that of the previous courts?
(d) Should the advantages and disadvantages of the use of the drug have been
considered in more depth before delivering a judgement decriminalising
cannabis?
(e) Is the decriminalisation of cannabis for private use justified in terms of the
Constitution?
(f) Would legalising cannabis in clearly restricted circumstances lead to a rapid
increase in the use of the drug?

Also, South Africa ratified 3 international treaties which, among others, create an
obligation upon states to criminalise the possession and cultivation of cannabis for
personal use. This again leaves a question of whether South Africa will still be in
adherence with its international law obligations. These questions will be considered
by analysing various decisions of the courts and the legislation criminalising the use
of cannabis in South Africa.

3. HYPOTHESIS
This research focus on the constitutional justification that existed for the
decriminalisation of the use or possession of cannabis in South Africa. It also
focuses on various legislations which regulated the prohibition of the use of
cannabis in South Africa and the current legal position regarding the legality of
cannabis use. Various constitutional values were employed when deciding on
the limits of the decriminalisation of cannabis use. The right to freedom, the
right to religious beliefs, the right to privacy and dignity were the constitutional
rights used by the applicants in the Prince case 11 to justify decriminalisation of
the use of cannabis in South Africa.

The purpose of this research is to also demonstrate how the right to privacy
played out in the 2017 and 2018 Prince case decisions leading to the courts
to find a constitutional infringement, a finding which previous decisions had
not arrived at. It is widely accepted that everyone has the right to privacy
which is constitutionally entrenched in the South African Bill of Rights. 12 This
right to privacy thus entitles an adult person to use, possess or cultivate
cannabis in private for personal consumption. Therefore the prohibition of the

11
Prince v President of the Law Society of the Cape of Good Hope (2002(2) SA 794 (CC)).
12
Constitution of the Republic of South Africa, 1996.

5
 private use of cannabis is unjustified as it breaches one of the constitutional
values which is the right to privacy. Also, the provisions (Drugs Act and
Medicines Act) which governs the prohibition of the use of cannabis also
infringes the right to privacy since they place an undue limitation on this right.
Furthermore what made the arguments of the 2018 case stand out is the fact
that the court interpreted the right to privacy as the right to be left alone. This
right thus allows an adult person to use, possess or cultivate cannabis in
private for personal consumption. With regard to international law, the 2018
decision, although changing the legal regime in South Africa, does not infringe
the international drug treaties to which South Africa subscribes.

4. POINTS OF DEPARTURE AND ASSUMPTIONS

The research point of departure is purely from a constitutional law perspective.
The first point of departure will be an examination of legislation which gave rise to
the criminalisation of cannabis use in South Africa with the sole purpose of
determining the reasons that led to the current status of cannabis. The
Constitution will provide a starting point in terms of this research since it is the
highest law of the country and any law that is inconsistent with it is
unconstitutional. The criminalisation of cannabis use in South Africa was effected
through provisions in two Acts of Parliament namely the Drugs and Drug
Trafficking Act and the Medicines and Related Substances Control Act. In
accordance with these provisions cannabis is one of the substances prohibited
for personal use. The criminalisation of cannabis is a controversial topic and has
always awakened debates on whether or not the use of this substance should
constitute a criminal offence. These debates have exceeded the academic realm
and many challenged its criminalisation in a court of law. The argument has time
to time again been that the criminalisation infringes the right to practise religious
beliefs among others. The decision of 2017, as later confirmed in 2018 by the
South African Constitutional Court decriminalised the use of cannabis. Notably,
the laws criminalising cannabis were challenged not on the basis of religion but
based on the right to privacy.

The second point of departure will be from a comparative approach. A

comparison of the current legal position on the private use of cannabis in South
Africa to the legal position in Netherlands will be made.

Legal position of cannabis in South Africa

6
 Cannabis in South Africa has been decriminalised by the country‟s Constitutional
Court in Prince v Minister of Justice and Development & Others13 case for
personal consumption by adults in private. The court ruled that the legislations
disallowing the use and cultivation of cannabis by an adult in a private dwelling
was unconstitutional and therefore invalid on the grounds that such infringement
of the constitutional right to privacy could not be justified. This means that it is
now legal to use cannabis for personal consumption. However laws prohibiting
use outside of one‟s private dwelling and buying and selling cannabis still remain.
Since regulations against the purchase of products containing cannabis still
remain in effect, it also remains unclear how the ruling can be enforced as well.

Legal position of cannabis in the Netherlands

The main drug law in the Netherlands is the Opium Act.14 This Act distinguished
between drugs presenting unacceptable risks (called hard drugs) and cannabis
products (called soft drugs). Similar to South Africa, the policy effectively
decriminalised the personal use and cultivation of cannabis (soft drugs) for adults
in their private space. However the use of hard drugs is still illegal. Unlike South
Africa, the Netherlands tolerates the existence of outlets for low-volume cannabis
sales called the Dutch-coffee shops. These coffee shops are permitted to sell
cannabis under strict conditions as this is part of the Dutch policy toleration.
Dutch municipalities also have the authority to prohibit or allow drug use in
designated areas. Most municipalities that tolerate drug use prohibit it near
schools and public institutions. Growing your own cannabis plant is tolerated in
the Netherlands as long as you don‟t grow more than 5 plants and grow them
exclusively for personal use.

ASSUMPTIONS:

The assumption is that the Constitution is the supreme law of the land and no
other law may be in conflict with it. Any law inconsistent with the Constitution will
be deemed to be unconstitutional. Section 14 of the Constitution provides that
everyone has the right to privacy thus the criminalisation of cannabis infringed on
this right. The general prohibition of cannabis failed to take into account the right
to privacy enshrined in the Constitution and is for that reason unconstitutional.

This research will not be focusing on the arguments and debates for and against
the decriminalisation of cannabis use nor will it focus on the advantages and
disadvantages of using cannabis. It will also not be focusing on the surveys and
statistics in relation to cannabis use and the production of it. Social, economic
and legal impacts of the legalisation of cannabis will also not be taken into
account.
13
Prince v Minister of Justice and Development & Others.
14
Opium Act of 1976.

7
 5. CONCEPTUALISATION OF CENTRAL RESEARCH
THEMES

5.1 “in private”- in terms of the Prince case, in private means that the use,
possession or cultivation is not confined to one‟s “home” or a “private dwelling”. 15

5.2 The right to privacy- Section 14 of the Constitution defines the right to
privacy as the right not to have their person or home searched; their property
searched; their possession seized and the privacy of their communications
seized.16

5.3. Constitutional Court- in terms of the Constitution, this court refers to the
highest court when it comes to interpretation, protection and enforcement of the
law. It deals exclusively with constitutional matters- those cases that raises
questions about the application or interpretation of the Constitution.17

5.4 Legalisation- the process of the removal of all types of penalty, criminal or
administrative- for production, supply and possession of, for example cannabis.
This process takes place correctly through regulations.18

5.5 Cultivation- the planting, tending, improving or harvesting of crops or plants.

It can be done outdoors, indoors, and or shadehouses. Cultivation can be done in
soil, water or other various growing mediums. 19

5.6 Decriminalisation- generally understood to refer to the removal of criminal

sanctions for certain offences- usually the possession and use of small quantities
of currently illegal drugs for personal use. Under a system of decriminalisation,
possession and use of drugs remain unlawful and punishable offences
(fines/community service) but no longer attracts a criminal record.20

5.7 Cannabis- also known as marijuana among other names is a psychoactive

drug from the cannabis plant used primarily for medical or recreational
purposes.21

15
Prince v Minister of Justice and Development & Others; Rubin v National Director of Prosecutions &
Others; Acton and Others (Prince 2).
16
Constitution of the Republic of South Africa, 1996.
17
Constitution of the Republic of South Africa, 1996.
18
Mo Med. Legalization, decriminalization & Medicinal use of cannabis: A scientific and Public Health
Perspective. 2012 Mar-Apr, 109(2): 90-98.
19
Jeniffer C. What is Cultivation? Updaated September 24 2020.
20
Mo Med. Legalization, decriminalization & Medicinal use of cannabis: A scientific and Public Health
Perspective. 2012 Mar-Apr, 109(2): 90-98.
21
Room R, Fischer B, Hall W, Reuter B, Lenton S, Cannabis policy: moving beyond stalement:USA:
Oxford University Press; 2019.

8
6. PROPOSED CHAPTER OUTLAY

Chapter 1 The terms and concepts central to the

research will be contained in this
chapter. The chapter will also include
an introduction and outlines the
methodology of the research product.
Chapter 2 This chapter will analyse relevant
sections of appropriate legislations as
well as case laws relating to the
prohibition of cannabis in South Africa.
Further, discussions on the impact of
the Prince cases will be considered.
Chapter 3 This chapter will contain a
comparative analysis of the legal
position regarding the legality of
cannabis between the South African
law and the legal system of the
Netherlands.
Chapter 4 Finally this chapter will provide
conclusions and recommendation.

7. PROJECTED TIME SCALE.

CHAPTER: SUBMISSION DATE: COMMENTARY:

Chapter 1 03 August 2020 15 August 2020
Chapter 2 30 August 2020 13 September 2020
Chapter 3 30 September 2020 05 October 2020
Chapter 4 20 October 2020 25 October 2020
Final Product: 12 November 2020

8. DESCRIPTION OF PROPOSED RESEARCH METHOD.

The research method that will be used will be the comparative method. I will
use this method to compare the legal status regarding the legality of cannabis

9
 in South Africa and in the Netherlands. I will be using the resources of the
UNISA library as well as the e-reserves in order to find the sources for the
research. Sources will include books, journal articles and research papers by
different scholars. In terms of the current legal position regarding the use of
cannabis in South Africa I will be using the Prince case which decriminalised
cannabis. I will also consult the Drugs Act and the Medicines Act which was
responsible for the prohibition of the use of cannabis. I will also consult the
Dutch statutory law such as the Opium Act,22case law and secondary sources
for comparative purposes to determine the legal position of cannabis in the
Netherlands. A qualitative research will be used.

9. CONCLUSION
The Constitutional Court in the Prince 2 case declared the Drugs Act and the
Medicines which prohibits the use, possession and cultivation of cannabis by
adults unconstitutional on grounds that they infringe the right to privacy as
entrenched in section 14 of the Constitution.23 The effect of this judgement
thus decriminalises the use, possession and cultivation of cannabis by an
adult in private for personal consumption. However the use, possession and
cultivation of cannabis is still illegal in public.

10. BIBLIOGRAPHY

LEGISLATION

Constitution of the Republic of South Africa, 1996

Drugs and Drug Trafficking Act 140 of 1992
Mental, Dental and Pharmacy Act 13 of 1928

CASE LAW

22
Opium Act of 1976.
23
Constitution of the Republic of South Africa, 1996.

10
Prince v President of the law of Society and of the Cape of Good Hope &
Others [2002] JOL 9305 (CC)

Prince v Minister of Justice and Development & Others; Rubin v National

Director of Public Prosecutions & Others; Acton and Others (CC 108/17)
[2018] ZACC30; 2018 (10) BCLR 1220 (CC); 2018 (6) SA 393 (CC); 2019 (1)
SACR 14 (CC)

JOURNAL ARTICLES

Jeniffer 2020. Student law journal 105

Jeniffer C. “What is Cultivation ?”. September 24, 2020

Kings 2014 Law Journal

Kings, Sipho “The war on drugs sober up.” The M&G Online 2014

Lianneus Journal 1027

Linnaeus “ Species Plantanum 2” 1027-1031

Mo Med 2012 Mar- Apr 109(2)

Mo Med. “Legalization, decriminalization, & Medicinal use of cannabis : A
scientific and Public Health Perspective” . 2012 Mar-Apr 109(2): 90-98

Room 2010, Journal article, 230

Room R, Fischer B, Hall W, Reuter P, Lenton S. “Cannabis policy: moving
beyond stalemate” : USA: Oxford University Press; 2010.

Watt Journal Article 1961

Watt, John “ UNODC- Bulletin on Narcotics- 1961 Issue 3 002.” United
Nations Office Drugs and Crime

BOOKS

Clarke The people’s plant 9.

Clarke M, Cannabis in South Africa the people’s plant (Juta Cape Town) 3.

11
 11. ACADEMIC HONESTY DECLARATION.

ACADEMIC HONESTY DECLARATION

1. I understand what academic dishonesty entails and am aware of Unisa‟s
policies in this regard.
2. I declare that this assignment is my own, original work. Where I have used someone
else‟s work, I have indicated this by using the prescribed style of referencing. Every
contribution to, and quotation in, this assignment from the work or works of other people
has been referenced according to the prescribed style.
3. I have not allowed, and will not allow, anyone to copy my work with the intention of
passing it off as his or her own work.
4. I did not make use of another student‟s work and submit it as my own.

NAME: MAROBA MERRIAM KGANYAGO

SIGNATURE:
STUDENT NUMBER: 62270745
MODULE CODE: LME3701
DATE: 18 NOVEMBER 2020
RESEARCH THEME SELECTED: A COMPARATIVE APPROACH
MARK RECEIVED FOR ASSIGNMENT 01: 100
MARK RECEIVED FOR ASSIGNMENT 02: 77

12