Constitutional Court of South Africa: A 10-Judge Bench comprising of Zondo, ACJ., Cameron, Froneman, Jafta, Madlanga, Mhlantla, Theron, JJ., Kathree-Setiloane, Kollapen, Zondi, AJ., unanimously declared private use of cannabis a matter of privacy and thereby appeal was dismissed.
The facts of the case are that High Court gave an order due to which Sections 4(b) and 5(b) of the Drugs and Drug Trafficking Act, 1992 read with Part III of Schedule 2 to the Drugs Act and Section 22A(9)(a)(i) of the Medicines and Related Substances Control Act,1965 and Section 22A(10) read with Schedule 7 of GN R509, 2003 were declared to be constitutionally invalid. The above provisions prohibited an adult person to use, possess, purchase, cultivate cannabis for personal consumption and thus was declared as constitutionally invalid on the reasoning that it was against the right to privacy guaranteed under Section 14 of the Constitution.
Applicant State submitted that it is in public interest that the restriction is put for the health, safety and psychological well-being of cannabis users whereas respondent agreed to the invalidation of impugned provision. Further High Court suspended its declaration until parliament corrects the defects as pointed out in its order. Constitutional Court was of the view that High Court was not competent to suspend its declaration as the declaration was not yet confirmed by the Constitutional Court as is required under Article 172(2) of the Constitution of Republic of South Africa. On the question of infringement of right to privacy the Constitutional court found that the right to privacy of adults to use etc. in private was limited by these provisions.
Constitutional Court came to the conclusion that the prohibition on privately involving in any activity which is related to cannabis cultivation by an adult for personal consumption was not in consonance with right to privacy as entrenched in the Constitution and was constitutionally invalid. Since constitutional invalidity declared by High Court was being affirmed by the Constitutional Court this order of invalidity was suspended for the parliament to correct the constitutional defects as pointed by this court in the impugned provision. Therefore, this appeal was dismissed. [Minister of Justice and Constitutional Development v. Prince, Case CCT 108 of 17, decided on 16-09-2018]
