To clear the muddy water of any legal quagmire we look to our three pillars of government for interpretive guidance. The legislature passes laws and provides oversight, the executive passes regulations or instructions and manages policy execution and the judiciary makes findings both enforcing and refining legal positions.
Our focus this week initiates analysis into the three pillars of government.
The port of first call is our judiciary, what have the courts been finding on cannabis matters?
Most are familiar with the Prince judgment, where there was a finding of unconstitutionality in the criminalisation of personal use of cannabis in a private space. This article looks into how the courts have dealt with private use cannabis since then.
Best interest of the child
Judge Henny held in S v LM and Others [2020] that children ought not go through the criminal justice system if caught possessing or dealing in cannabis.
Confirmed in Centre for Child Law v Director of Public Prosecutions [2022], it is in the best interest of the child to undergo social corrective measures rather than incarceration due to the harms done to a child by the raw criminal justice system.
Therefore our courts hold that children are not to be held criminally liable for cannabis offences which has a bearing on the Cannabis for Private Purposes Bill where one of the heaviest penalties is for an adult who engages a child in dealing in cannabis.
Section 4(6) of the Cannabis for Private Purposes Bill
“Any person who engages a child to deal in cannabis, … is guilty of an offence and is liable on conviction to a fine or imprisonment for a period not exceeding 10 years or to both such fine and imprisonment.”
Cannabis and the workplace
The use of cannabis is not an absolute right. Employee’s have to listen to their employees’ HR Drug policy. Marasi v Petroleum Oil and Gas Corporation of South Africa [2023] we are reminded that the Employment Equity Act allows for HR policy to prevent drug use and this does not amount to unfair discrimination, rather to maintain health and safety standards.
This was further upheld in SGB Cape Octorex (Pty) Ltd v Metal & Engineering Industries Bargaining Council & others (2023) where the employee was dismissed for breaching the Human Resources Drug policy.
Police and warranted raids
In Residents, Industry House and Others v Minister of Police and Others [2023] the courts made a finding that supports the recent SAPS directive relating to the procedure that must be followed in order to arrest or seize cannabis in a private dwelling.
The arresting officer must obtain a warrant from the local prosecutor.
The prosecutor may only issue such a warrant if he/she is convinced by the evidence at hand that the accused will be convicted of dealing in cannabis.
Private Cannabis Clubs
The recently postponed Haze Club judgment carries heavy significance on the interpreted legality of private social clubs in South Africa.
Premised on the Constitutional right to privacy and freedom of association, the operation of private clubs has been found in the Western Cape High Court to be lacking the privacy measures relied on by the defendant.
The matter has been taken on appeal and if successful and our Supreme Court makes a finding in favour of the private club model, we could see as significant reform for cannabis users as the Prince judgement.
As discussed in the previous article, private clubs can play an integral role in facilitating the responsible distribution of non-commercial recreational cannabis.
Dealing in cannabis
In cases where it is clear that the accused is dealing in cannabis, the courts have made findings of imprisonment. In the recent S v Haggis [2023] judgement, the accused were found guilty of dealing in more than 330 kg's of cannabis.
The court made reference to a host of (pre Prince) cases where the accused was sentenced to prison time ranging from 6 to 10 years. In these instances the accused was caught handling hundreds of kilograms of cannabis, a far cry from personal use.
Section 4(1) of the Cannabis for Private Purposes Bill
“Any person who deals in cannabis, is guilty of an offence and is liable on conviction to a fine or imprisonment for a period not exceeding 10 years or to both such fine and imprisonment. “
Private cannabis use
Courts are hesitant to make findings on alleged private cannabis use outside of the above mentioned cases.
I am aware of five cases that are continuously postponed to later dates, provisionally withdrawn or awaiting further evidence.
All these cases involve private cultivation and use of cannabis, and as seen in the Haze Club postponement to the fourth quarter of this year, courts are hesitant to make findings until the Cannabis Bill is passed.
A narrow interpretation of ‘dealing in’ to exclude sharing cannabis in private clubs and a broad interpretation of ‘private place’ to include private clubs could see private cannabis clubs as an option for responsible and regulated cannabis distribution.
Josh Swart consults cannabis farmers and businesses surrounding the legality of cannabis both medically, industrial farming and private use. Starting in 2017, his seven years of active lobbying at Parliament and industry consulting finds an acute legal opinion that is sharp to call out illegal operations and quick to facilitate the industry access for those interested in cannabis opportunities.
IOL Opinion