Private Possession, use and Cultivation of Cannabis in South Africa

During September 2018, the Constitutional Court handed down a highly publicised judgment on the possession, use and cultivation of Cannabis in South Africa. Deputy Chief Justice Raymond Zondo handed down the judgement which declared that the legislation criminalising the private possession, use, purchase and cultivation of cannabis was unconstitutional. It is now legal for a person to use, cultivate and possess cannabis, however, these rights are not without limitations.

It is important to note that this judgement is limited to personal use by adult persons and may only be used in your private dwelling. There is currently still no clarity on how much cannabis a person can be in possession of, for it to be considered acceptable for personal use. Furthermore, the term ‘private dwelling’ is open for interpretation – for example, it be argued that your vehicle is considered to be your private dwelling, even though it may be parked in a public area?

To date hereof, Parliament has not gazetted any legislation regulating the use, possession and cultivation of cannabis, which has left a gap in the law which has confused many South Africans on what is acceptable or not. Consequently, the South African Police are now left with the responsibility of determining on a case-by-case basis, what is a ‘reasonable’ amount of cannabis a person may have in their possession, or what constitutes a private dwelling.

It will be interesting to see not only how our law will develop but also how our courts will approach matters regarding the private possession, usage and cultivation of Cannabis in South Africa in the next few years.

Should you have any queries regarding this Judgment or need any advice concerning this highly published topic, feel free to contact Van Schalkwyk Attorneys!