Decriminalisation of cannabis – Residential Housing Estates and Sectional Title Schemes

12 Nov 2018

On 18 September 2018 in an important right to privacy judgment the Constitutional Court (“CC”), decriminalised:

• the use or possession of cannabis by an adult in private; and
• the cultivation of cannabis by an adult in a private place for his or her personal use in private. It is important to note that the CC has not restricted the possession, use or cultivation of cannabis to an adult person’s home or dwelling, holding that “there are other places other than a person’s home or a private dwelling where the prohibition of the use or possession or cultivation of cannabis would be inconsistent with the right to privacy if the use or possession or cultivation of cannabis was by an adult in private for his or her personal consumption in private.”

The judgment has created several far-reaching consequences concerning what may be permitted in respect of the possession, use and cultivation of cannabis.

What is permitted?

The “right to privacy entitles an adult person to use or cultivate or possess cannabis in private for his or her personal consumption”. The right to privacy applies to all adult persons and the scope of privacy is only subject to limitation when an individual enters into relationships with persons outside of his or her intimate sphere and his or her activities acquire a social dimension.

Possession

An adult person enjoys the right to possess small amounts of cannabis in private for his or her personal use. Selling, purchasing or “dealing” in cannabis remains a criminal offence.

While the determination of the total allowable amount of cannabis for personal consumption has been left to Parliament, the amount of cannabis in the possession of or cultivated by an adult must reasonably be an amount suitable for personal consumption only.

Use

An adult person may use cannabis in the privacy of his or her own home or dwelling, however, “the use, including smoking, of cannabis in public or in the presence of children or in the presence of non-consenting adult persons is not permitted”.

The CC has further extended the permitted use of cannabis to a private place that is not the person’s home or dwelling provided that such place is private and away from or not in the direct view of the public. For example, a private place may include a stationary motor vehicle where the engine is not running, a secluded park or a secluded room or office.

Cultivation

An adult person may cultivate cannabis for his or her personal consumption inside their home or dwelling, in their garden, on the balcony of their home or dwelling or in a private place other than in their garden, provided that such place is considered a private place.

A place that is clearly visible to the public may not be considered private. Cannabis should therefore not be cultivated in such a place.

What does this mean?

Whilst these activities are no longer a criminal offence, they are subject to limitation by the provisions of national, provincial and local legislation as well as the rules of a Home Owner’s Association, the rules of a body corporate and / or a landlord’s house rules in respect of a leased residential property, where relevant.

Where people live in closer proximity with shared spaces, such as on a residential estate or in a sectional title scheme, there may be some debate around what activities should be permitted, and where. In order to avoid disputes trustees, body corporates and landlords should consider introducing specific rules relating to the control the possession, use and cultivation of cannabis on the property in question.

It would be prudent to adopt a cautious approach to the activities that are permitted for now. Although the court has ordered an interim “reading in” to the affected legislation, it has afforded Parliament a period of 24 months to draft legislation to regulate the use, possession and cultivation of cannabis in line with the judgment. Such legislation is likely to flesh out the details of how this change will be implemented in practice.

See also:

• The path to the legalisation of marijuana in South Africa
• The Cannabis judgment: Implications for society and the workplace

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)