Constitutional Court Ruling – Right to Privacy

Privacy is a fundamental human right, enshrined in numerous international human rights instruments.  It is central to the protection of human dignity and forms the basis of any democratic society.  

On Tuesday, 18 September 2018 the Constitutional Court handed down judgment in the application for the confirmation of an order of constitutional invalidity made by the High Court of South Africa, Western Cape Division, Cape Town (High Court) which declared legislation criminalising the use, possession, purchase, and cultivation of cannabis unconstitutional.

In a unanimous judgment written by Zondo ACJ, as he then was, the Constitutional Court declared that—

(a) section 4(b) of the Drugs Act was unconstitutional and, therefore, invalid to the extent that it prohibits the use or possession of cannabis by an adult in private for that adult’s personal consumption in private.

(b) section 5(b) of the Drugs Act was constitutionally invalid to the extent that it prohibits the cultivation of cannabis by an adult in a private place for that adult’s personal consumption in private; and 

(c) section 22A(9)(a)(i) of the Medicines Act was constitutionally invalid to the extent that it renders the use or possession of cannabis by an adult in private for that adult’s personal consumption in private a criminal offence.

The Constitutional Court held these statutory provisions to be constitutionally invalid to the extent indicated because they infringed the right to privacy entrenched in section 14 of the Constitution. 

The Constitutional Court dispensed with the High Court’s limitation of its order to the use, cultivation, or possession of cannabis “at home or in a private dwelling”. It held that the right to privacy extends beyond the boundaries of a home.

The effect of the judgment is two-fold: 

(a) it decriminalises the use or possession of cannabis by an adult in private for that adult person’s personal consumption in private, and 

(b) it decriminalises the cultivation of cannabis by an adult in a private place for that adult’s personal consumption in private. 

Rightfully so, the use or possession of cannabis by a minor child anywhere, or by an adult in a public space, is not decriminalised.

Section 14 of the South African Constitution states that everyone has the right to privacy, which includes the right not to have:

1. Their person or home searched,
2. Their property searched 
3. Their possessions seized; or
4. The privacy of their communications infringed

Section 18 of the South African Constitution states that everyone has the right to freedom of association.

Section 22 of the South African Constitution states that every citizen has the right to choose their trade, occupation, or profession freely.  The practice of a trade, occupation, or profession may be regulated by law.