Since the decriminalisation of dagga for personal use, there have been a range of questions regarding the practicalities of the Constitutional Court ruling on Tuesday…
The court upheld a Western Cape High Court ruling that decriminalised the personal use of marijuana in a private space.
Social media was alight following the judgment and many users speculated about the practical application of the ruling.
For example, can you puff away on a joint in the privacy of your home and then get into your car and take to the roads?
According to Peter Ucko, chairperson for marketing and communication at the Central Drug Authority at the Department of Social Development, smoking dagga and being under the influence of alcohol are completely different.
“There’s a blood-alcohol level that is defined and clear. When it comes to the inability to operate a vehicle on a public road, there could be other standards [for substances]. Let’s take an antihistamine, for example, which causes drowsiness – there are many medications that can cause impairment to your muscular and mental function and there has to be a level to measure that. Cannabis affects people differently.
“If you have two or three puffs, it’s very different from smoking three zols in a row and then [you] drive. Your abilities might be seriously impaired.
“If the police arrested you, say following an accident, you will have to be tested by a medical professional to determine the extent of your impairment.”
Johan Jonck of Arrive Alive was, however, clear that smoking and driving was against the law
Jonck told Wheels24 on Wednesday: “It is not a green light to drive under the influence of dagga or any other drug having a narcotic effect. We need to understand that our rights can be limited by the rights of others and their right to safety.
“Even those people who use dagga would not want to have family and friends exposed to recklessness on the roads by those who may be so under the influence that they may make incorrect and unsafe decisions on the roads,” Jonck said.
Ucko is quick to point out that dagga has NOT been legalised
“It’s ‘decriminalisation’ of cannabis for personal use, so you won’t be arrested when you use it at home.
“But I can’t grow and sell cannabis – that is still a criminal offence.
“What [the Constitutional Court] did was to call section 4(b) of the Medicines Act unconstitutional.
“So government now has 24 months to frame that in a way that will make it constitutional, using the guidelines the court put in the judgment.
I can’t grow and sell cannabis – that is still a criminal offence.
“My interpretation is you will be allowed to grow cannabis at home for your own use. That implies you will be allowed to buy seeds. How that gets put into words in terms of law still needs to be debated.”
What is a ‘private space’?
Another question related to what constituted a private space and whether that space could extend outside a person’s private home.
According to Ucko, the Tobacco Act can be used as a precedent when it comes to smoking dagga.
“If you rent a hall to get married, it’s a private function where you invite your own guests. But is it private and can you smoke there? The answer is ‘no’. It’s a public place in terms of the Tobacco Act. I think it will be the same in terms of any legislation regarding cannabis.
“If you live in a block of flats or an apartment, the inside of your flat is your private dwelling, but what happens when the smoke drifts next door because of an open window? The government will have to still define that,” Ucko said.
How much dagga can I grow?
In terms of legislation, being in possession of less than 115g of dagga is considered possession, while any quantity above that is considered dealing.
But the Constitutional Court judgment did not specify how many grams of cannabis a person could use or have in private.
“That is something that will still be determined and public input will play a huge role after a draft amendment to the act is published,” Ucko says.
“A member of the public might suggest one plant of 1m high, while another might say they need 10 plants that are 3m tall.
“Those are matters that the legislators will need to address to find a reasonable solution.”
Parliament has 24 months to ratify the legislation.