We agree to a greater extent that the final decision made by the constitutional court of the Republic of South Africa in the case of Minister of justice and constitutional development and others v Prince cct108/17, was justified in the sense that it made provisions which discriminated against the constitutional rights to be inconsistent with the constitution and therefore invalid. Cannabis, also known as marijuana among other names, is a psychoactive drug from the Cannabis plant used for medical and recreational purposes. The main psychoactive part of cannabis is tetrahydrocannabinol, one of 483 known compounds in the plant, including at least 65 other cannabinoids.
Rastafarians believe that the Tree of Life mentioned in the Bible is the marijuana plant and that several other biblical passages further promote its use, such as “Thou shalt eat the herb of the field” (Genesis 3:18), “Eat every herb of the land” (Exodus 10:12) and “The herb is the healing of the nations” (Revelation 22:2). Private and personal use means the use of cannabis not for commercial purposes but for one’s own personal consumption, however, it has to be in a private place and not in public. Infringement is the action of breaking the terms of a law, agreement or a violation. It is also the action of limiting or undermining something. This assignment will be dwelling specifically on South African legislation pre and post the legalization of marijuana, legislation legalizing marijuana, relevant cases where the legislation of marijuana came before the court, the health benefits or disadvantages and the economic gain in the legalization of marijuana.
South African legislation before the legalization of marijuana- Sections 4(b) and 5(b) of Drugs and Drug Trafficking Act and section 22A(9)(a)(1) of the Medicines and Related Substances Control Act were inconsistent with section 14 of the Constitution in such that that they criminalized the use or possession or growing of cannabis in a private place by an adult for his or her own personal consumption. Rastafarians use cannabis because of their culture and their rights were infringed as the use of cannabis was made illegal.
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South African legislation after the legalization of marijuana- It is proclaimed that, after the handing down of the judgement by Zondo ACJ in the Prince case, the provisions of sections 4(b) of the Drugs and Drug Trafficking Act and the provisions of section 22A(9)(a)(i) of the Medicines and Related Substances Control Act published in terms of section 22A(2) of that Act are not consistent with the entrenched privacy rights in section 14 of the Constitution. This compromises their validity because they make private possession of marijuana by an adult person his or her private consumption a criminal offence. The constitutional courts order of invalidity was had a 2 year suspension period for which during that time parliament would be able to amend of fix the constitutional errors in the two Acts.
For the sake of the people who ,may find themselves facing the same predicament as Mr prince, for the duration of the period of postponement of the invalidity, any adult with the possession of marijuana within the private space of his own home even decided to grow it for personal recreational or religious purposes would not be punishable by criminal law. Zondo ACJ granted such provisional relief by reading-in to the two Acts to see to it that the aforementioned is guaranteed.
Legislation legalizing marijuana: The Constitution of South Africa,1996. The order of the High Court declared constitutionally invalid not only the provisions of the sections referred to therein that prohibit the use or possession of marijuana in a private dwelling but also the trade and cultivation of marijuana in a private dwelling or home. The High Court’s basis for declaring the provisions constitutionally invalid to the extent that it did was that they were not consistent with the privacy rights provided for in the constitution when an adult uses or is in possession of, or, cultivates, marijuana in a private dwelling or at home for his or her private recreational uses. Drugs and Drug Trafficking Act, 140 of 1992.
It was declared on the date the judgement was handed down under the Drugs Act, the provisions of section 4(b) of the Drugs and Drug Trafficking Act, 140 of 1992 partnered with the 3rd part of the 2nd schedule of the Legislation were not consistent with the privacy rights entrenched in section 14 of the constitution and, therefore invalid, invalid to the extent that they make the usage or possession of marijuana in private by an adult person for his or her own consumption in private a criminal offence.
Medicines and Related Substances Control Act, 101 of 1965. The provisions of the Medicines Act which were stated as invalid are sections; 22A(9)(a)(i) and 22A(10). Section 22A(9)(a)(i) of the Medicines Act prohibits possession or ownership every listed substance except if that person is the recipient of the director generals permit for the purchase, usage, ownership, production or supply: Granted that the General may, under the specified circumstances as it may be deemed fit by him/her, obtain or grant permission any substance’s use for the sake of its provision to a medical practitioner, analyst, researcher or veterinarian moreover under the conditions that have been prescribed dealing with or preventing a certain illness in particular patients for educational, analytical or researching purposes.
Section 22A (10) states that no one should trade or administer of the substances in the Schedule or medicine for any purposes which are non-medicinal: With the provision that the Minister may ,under the provided conditions constituted in this Act, give the permission for the administration outside the boundaries of every Medical institution of any substance or medicine listed in the Schedule fulfilment , craving or habit relief to the person reference is made to in that authority.
In the case of Ravin v State of Alaska. An attorney intentionally had himself detained in an Anchorage when he refused to sign a traffic ticket whilst possessing cannabis so that he could challenge the exiting law. Ravin was of the opinion the case focused too much on privacy claiming that cannabis had never been an issue for him. For him the fight has always been for the protection privacy, and personal territory and since the state has always traditionally been home to people who value their individuality and independence of each other and who chose to be in control over their own lifestyles which has now become practically impossible to attain in many of our neighboring states. This case was a unanimous decision by the Alaska Supreme Court. Decided on May 27, 1975, the Courts judgment stated that the privacy right provided for in the in Alaskan Constitution, protects an adults ability to make usage of or have in possession a small amount of marijuana in their houses for recreational use. The Supreme court of Alaska thereby became the first state or federal court to announce the constitutional right to privacy is in protection some level of cannabis use and possession.
In the case of R v Malmo-Levine; R v Caine. . A pair of cases were referred to. The first case was where the “marijuana/freedom activist” who goes by the name of David Malmo-Levine ran organisation aimed at decrease the lack of information people have regarding and with it the harm which is commonly linked with the herb’s usage. These means were to be achieved through teaching users and the general public about the drug whilst also attempting to offer it lower costs or cost value. It came to be known as the “Harm Reduction Club” and was based in East Vancouver. 316 grams of cannabis where found and taken by the police when they raided the club on December 16, 1996 and Malmo-Levine was charged with possession for the purposes of trafficking.
The latter was about Victor Caine’s arrest for possession the drug. Victor confronted by two Royal Canadian Mounted Police when he was by the ocean in the van he owned. Half a gram of marijuana was found in his possession. They both challenged the constitutional validity of criminalisation of cannabis in the Narcotics Control Act. Malmo argued whether there should be a Criminal Law condition for Harm. He argued that the constitutional power to pass criminal law under section 91(27) of the Constitution Act, 1867 is limited to conduct that causes harm. Further arguments were made by him, pointing out that the “harm principle” should be considered a principle of fundamental justice under the Canadian charter, in Section 7.
The majority judgements by Gonthier and Binnie JJ disapproved the “Conditions of harm” arguments under section 91(27) of the Constitution Act, 1867 and section 7 of the Charter. It was held that parliament did not have to establish harm rather a reasonable apprehension of that harm. Gonthier and Binnie looked towards R v Hauser, which stated that Drug abuse was a new issue that was understandably not considered in in 1867 so it fell under the peace, order and good government power. They suggested that this case was likely inaccurate as narcotics were clearly Criminal law matter. They stated that the power of Criminal law, included the protection of vulnerable groups. Thus the government was able to control activities for the protection of the people who use drugs and the people of the society.
We agree to a greater extent that the legalization of marijuana in South Africa has great health benefits to the people and it has a great economic gain in South Africa. In accordance with the case of Minister of Justice and Constitutional Development and Others v Garreth Prince and Others, Cannabis sativa, Cannabis indica, Indian hemp, hemp, hashish, ganjah, dagga, Xhosa umya, Sutho matakwane, matokwane, matekwane, mmoana, these are the known names of the herb in South Africa. The herb clearly has a long relationship with the indigenous people of South Africa.
European cancer ‘cancer curers’ have used a dagga pipe ‘oil’ as an external applicant. The natives in Sourthern Rhodesia have used the herb, in combination or with other as a cure malaria, blackwater fever, bloodpoising, anthrax and dysentery, and as a ‘war medicine’. Mealie pap, by the Sutho people is administered with the ground¬-up seeds, sometimes bread during the weaning phase. Marijuana is also smoke by Sutho women for stupefaction purposes during labour. This case proves that the use of cannabis has many health advantages.
