For many, Friday was an emotional one. Not only was it the day Zuma took an unofficial step towards the role of a dictator, but dagga was also legalised.

Kinda.

Although the Western Cape High Court ruled it was an infringement of the constitutional right to privacy to ban the possession, use, and cultivation of dagga by adults at home, for the laws to officially change, however, News24 reports that:

Parliament has to wait until the Constitutional Court has confirmed the Western Cape High Court’s landmark judgment on private dagga use.

“If the two laws mentioned have been found to be unconstitutional, then the Constitutional Court would have to confirm the judgment before Parliament can act,” spokesperson Moloto Mothapo said.

He noted that the State could also appeal the ruling of the judges.

While Parliament studies the judgement, Mothapo said there were several ways it could “rectify the defects the judges identified in the laws”:

• Dealing with the defects in terms of the Medical Innovation Bill currently before Parliament, and first introduced by the late IFP MP Mario Oriami-Ambrosini as a Private Member’s Bill;
• Parliament introducing a new bill;
• The executive introducing a new bill.

So while we may have taken a small step towards legalisation of marijuana, for now it has been decriminalised within the realms of private use, so don’t go openly smoking it on your street corner as you might find yourself sleeping in a cell instead of your bed.

But just how did Gareth Prince, Jeremy Acton and Jonathan Ruben argue their case? From GroundUp:

The applications … argued that the criminalisation of dagga use and possession was a violation of the right to equality, dignity and freedom of religion. Interestingly, however, Davis instead chose to address their challenge almost solely within the context of the right to privacy. Prince had raised arguments on privacy, arguing that the distinction between dagga, alcohol and tobacco was irrational and could not be justified.

The question for the court was then whether the government could legitimately regulate and dictate what people consume, privately, within their own homes or whether this regulation was an unjustifiable infringement of the right to privacy and dignity. Davis considered, not only consumption and smoking of dagga within this analysis, but also cultivation of plants on private property for personal use.

There have been cases where this issue has been considered, but in the context of other activities such as possession of pornography. The trend has been that private activity within private homes falls within a very special part of the right to privacy that is outside the realm of what the government may regulate. However, if the government does choose to regulate these issues and infringes on a person’s right to privacy, the government will have to justify these infringements. Part of justifying this infringement requires that the government prove it has a substantial state interest that warrants regulation.

Davis’s judgment discussed the racist history that underpins prohibition of dagga through State v Nkosi, a case from 1972, which held that dagga was a “great social evil” despite its utility to “natives”. Davis held that the racist and moralistic reasons used to justify prohibition was insufficient to justify an infringement of the right to privacy under the Constitution. Consequently, the prohibition would need to be justified on the basis of scientific or other evidence.

Although the state did provide expert testimony on the harmful effect of dagga on health and society, a report submitted to the court by Professor Mark Shaw of the University of Cape Town — called Balancing Harms in Cannabis policy for South Africa — showed that punitive drug policies do not reduce rates of drug use. Shaw’s report also presented mechanisms, which could be used to reduce drug use without imposing criminal sanctions. A number of other studies and reports have also indicated that decriminalisation is a better way to address the harm that results from drug use.

The court also considered decisions from other jurisdictions such as Argentina, Canada and Mexico. The Mexican Supreme Court recently found criminalisation of marijuana unconstitutional because there were alternative mechanisms, that would infringe less on a person’s right to autonomy. Davis also noted the shifts toward legalisation in countries like Uruguay, Australia, Portugal, Switzerland, Spain, the Czech Republic and a number of states within the USA.

After considering all the evidence presented and foreign laws, the court found that the government had not proven that the law’s infringement of the right to privacy was a justifiable infringement of a person’s right to privacy within the home. It is important to emphasise that the judgment’s finding and order was limited to the narrow grounds of the right to privacy within private homes.

Davis declared certain sections of the Drugs Act and the Medicines and Related Substances Act, 1965 invalid — where they prohibit private and personal use of of dagga. But he suspended this order of invalidity for 24 months to allow Parliament to amend these Acts and bring them in line with the Constitution. However, before Parliament considers the matter, this order of invalidity must first be confirmed by the Constitutional Court.

The order also provides that until Parliament has made the amendments, all prosecutions falling within the invalidated provisions must be stayed. Again, it is important to understand that this does not apply to charges of possession in public or distribution.

And now you know.

[source:huffingtonpost&groundup]