Personal Marijuana Use Declared Legal by South African Court


The Western Cape Division of the High Court of South Africa, Cape Town, has found that the use of marijuana – even for recreational purposes – is legal within the privacy of one’s home. In doing so, it declared provisions of the Drug Trafficking Act (1996) and the Medicines Control Act (1965) unconstitutional. “The court has allowed for the possession, cultivation and use dagga [a modern version of the Khoi word dacha, meaning ‘weed’] at home, for private use,” writes Eyewitness News.

The High Court is, however, the lowest court which can pronounce on the constitutionality of laws, and, by declaring those provisions unconstitutional, South Africa’s highest court, the Constitutional Court, will need to confirm or reject the ruling.

The Constitutional Court has previously heard a case on the constitutionality of South Africa’s drug laws, however, that case was based on religious grounds, and was brought by a Rastafarian man. The Constitutional Court rejected that argument. This case in the High Court was spearheaded by the Dagga Party – a single-issue political party dedicated to the legalization of marijuana – and lawyer Garreth Anver Prince, the Rastafarian man who lost the 2002 Constitutional Court challenge in Prince v the Law Society of the Cape of Good Hope.

In the Prince case, the applicant was barred from becoming an attorney in South Africa because he had had a prior drug conviction, and was thus not regarded as a “fit and proper” person as is required by the Attorneys Act. Prince attempted to argue in court that his rights a Rastafarian were being violated, and lost the case. The recent case, however, appears to have been argued based on the constitutional right to equality.

News24 reports that the applicants in the case “submitted that the laws prohibiting dagga use are unfair, discriminatory, outdated, and applied disproportionately to black users.”

The High Court, in the meantime, has given the legislature – Parliament – two years to make the necessary amendments to South Africa’s drug laws to ensure the possession, cultivation and use of marijuana becomes legal within the confines of South Africans’ homes.

Pro-legalization groups were gathered in front of the High Court with banners, one of which read “In Weed We Trust.”

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Martin van Staden is the Editor in Chief of Being Libertarian, Rational Standard, and Champion Books. He has a law degree from the University of Pretoria. His articles represent his own views and beliefs, and not that of any of the organizations he is involved with.