James Grant[1]

Introduction

The recent decision of the Constitutional Court in Minister of Justice v Prince[2](“MOJ v Prince”)was met with ululation in court. The Court found decisively in favour of the private use, cultivation and possession of cannabis – in private.

The decision went to far for some, and not far enough for others. It is also unclear on some points and in other respects it will be argued that the court is, with respect, wrong. I will argue, for instance that the Court was wrong in attempting to restrict its decision from having a retrospective effect and in leaving the question of what constitutes an amount that one may cultivate or possess for private purposes to the discretion of police officers. These arguments are not appeals to some or other moral judgment, but are based on legal principles. They are also not an attempt to find loopholes in the law so as to permit the unscrupulous entrepreneur to get a head start on everyone else in making money from cannabis.

Indeed, money probably ought to be made from the plant, but in a way that is open to all and does not permit the unscrupulous to get rich by breaking the law or for the rich to get even richer.

What is the law

The order of the Constitutional Court in MOJ v Prince – in relevant part – is to the effect that various statutory provisions unjustifiably infringe the right to privacy and were struck down.

  • The Constitutional Court order permits the use or possession of cannabis in private by an adult person for his or her own consumption in private;[3]
  • One may not purchase cannabis,[4] but one may cultivate it, in a private
  • place, for one’s personal consumption;[5]
  • Privacy was given an expanded meaning – beyond that which Davis J
  • had given the concept – in that the Constitutional Court recognised that it
  • cannot be restricted to one’s home or dwelling;[6]
  • The order as to the invalidity and reading in was made prospective – from the date of the handing down of the order;[7]
  • The orders of Constitutional invalidity were suspended for 24 months to allow for the defects to be remedied;[8]
  • In the interim, the legislation shall be read so as to be consistent with the Constitution;[9]
  • If parliament fails to remedy the legislation, the reading in will become permanent.[10]

In the result, the Court ordered that:

an adult may –

  • cultivate cannabis; and
  • use or possess cannabis –
    • in a private place;
    • for his or her personal consumption;
    • in private.

Several issues demand attention and comment:

  1. On privacy – what is a private place?
  2. On the amount – how much is an amount which is not more than is reasonable for an individual to cultivate or possess for private purposes; and
  3. On retrospectivity – can this hold in the context of the criminal justice system and fair trial rights?

The Statute

It will be helpful to observe what it is that remains prohibited. For the answer to this one must consult the schedules to the Drugs and Drug Trafficking Act 140 of 1992 (the “Drugs Act”). Cannabis is listed in Part III of Schedule 2 as an “Undesirable Dependence producing Substance”, as follows:

Cannabis (dagga), the whole plant or any portion or product thereof, except dronabinol [(-)-transdelta-9-tetrahydrocannabinol].

The section goes on to include virtually any extract or preparation which may be made of the plant.[11]

Cultivation, use and possession of the substance remains prohibited to the extent that it does not fall within the protection provided in MOJ v Prince, as provided in section 4(b) of the Drugs Act:

No person shall use or have in his possession

(a) any dependence producing substance; or

(b) any dangerous dependence producing substance or any undesirable dependence producing substance; (emphasis added)

Dealing in cannabis remains prohibited under s 5(b) of the Drugs Act, as follows:

No person shall deal in[12]

(a) any dependence producing substance; or

(b) any dangerous dependence producing substance or any undesirable dependence producing substance; (emphasis added)

What the Law is not

It seems that already, since this decision (in MOJ v Prince) various attempts have been and are being made to circumvent the prohibition on dealing in cannabis.

Some of these seem to be a variety of the old attempts to circumvent the law that requires that only a liquor licensee can sell liquor, by selling some token, which then entitled the holder of the token to exchange the token for liquor. Our courts saw straight through this sham and we may expect the same of attempts to sell tokens which are then exchanged for cannabis. Besides this, there is the more direct problem that the definition of dealing[13] prohibits this conduct expressly. These definitions remain in force and prohibit the exchange or even donation of cannabis.

An interesting question is whether any sort of criminal liability arises in a scenario where someone purports to sell, say, an energy drink containing cannabis (and so THC), whereas the drink contains no THC. Here, if the seller knows that the drink contains no THC, s/he commits fraud, and if s/he believes that the drink contains THC, then s/he commits an attempt at dealing in cannabis. The buyer – presumably believing the drink to contain cannabis – commits an attempt to deal in cannabis. 

What is perhaps more interesting, because it deserves some serious consideration, is what is a private place, what amount may a person possess or cultivate, and whether any defence is available retrospectively. I will now take each of these in turn.

Privacy

The greatest guidance as to what constitutes “in private” is the apparent endorsement of the US conception of a “reasonable expectation of privacy”. The Court appears to endorse the views of Ackerman J in Bernstein.[14] It quoted extensively from the case, including, with apparent approval, the following:[15]

“The question corresponding to determining the ‘scope of the right to privacy’ in United States’ constitutional inquiry, is whether a search or seizure has occurred. The US Supreme Court has defined ‘search’ to mean a ‘governmental invasion of a person’s privacy’ and it has constructed a two part test to determine whether such an invasion has occurred. The party seeking suppression of the evidence must establish both that he or she has a subjective expectation of privacy and that the society has recognised that expectation as objectively reasonable. In determining whether the individual has lost his / her legitimate expectation of privacy, the Court will consider such factors as whether the item was exposed to the public, abandoned, or obtained by consent. It must of course be remembered that the American constitutional interpretative approach poses only a single inquiry, and does not follow the two stage approach of Canada and South Africa. Nevertheless it seems to be a sensible approach to say that the scope of a person’s privacy extends a fortiori only to those aspects in regard to which a legitimate expectation of privacy can be harboured.”

From this one may discern some sort of distinction between what may be regarded as a private place, as follows: Is it a place which –

  • the individual concerned believed to be private; and
  • society has agreed that this belief is objectively reasonable.

The Court held that the conception of privacy adopted by Davis J in Prince v MOJ[16] had been too restrictive. It reasoned that it could not be correct for one to be entitled to possess marijuana, say, in one’s pocket in one’s home, but that it became unlawful for one to leave one’s home with that marijuana in one’s pocket.[17] The constitutional court appears to be of the view that a person’s pocket is a private place.

On what would constitute a private place for the purposes of cultivation, the Court observed:

An example of cultivation of cannabis in a private place is the garden of one’s residence. It may or may not be that it can also be grown inside an enclosure or a room under certain circumstances. It may also be that one may cultivate it in a place other than in one’s garden if that place can be said to be a private place.[18]

With this – and the principle of “reasonable expectation” in mind – It would seem that the court would unquestionably regard cannabis carried on one’s person, or in a bag in which one carries one’s own belongings to be “in private”.

There can be little suggestion that carrying something inside one’s shirt must be as personal and private as carrying it in one’s pockets, and although carrying it in a bag may be less personal, again there would seem to be little to suggest that this ought not to be regarded as a personal space on the basis that the appropriate question seems to be whether these “spaces” were regarded as private and then, whether society would accept that these are private.

The conclusion would seem inescapable that the inside of one’s shirt, jacket, one’s bag or the inside of one’s own car, must be regarded as private on the basis that there is a reasonable expectation that these places are private.

Amount

As to what amount a person can cultivate, use or possess, the Court declined to specify[19]save to say that it is an amount which is necessary for personal consumption. The court stated:

I think that the references to possession of cannabis, “for personal use,” or “for personal consumption” help to ensure that we do not have to specify the amount or quantity of cannabis that may be possessed. We only need to say that the amount that may be possessed is an amount for personal consumption.[20]

The Court defended its refusal to specify the amount permitted by reference to other provisions under our law where an exercise as to what would amount to reasonable conduct or possession for personal use exists.

However, the court does not observe that the examples relied on offer a reference point – whereas, in respect of cannabis, our law has no frame of reference.

For instance, the court refers to the discretion which an officer must exercise in determining whether a driver is driving negligently.[21] This is the question of whether the driver is driving unreasonably, in the circumstances. Yet the Court fails to observe that the law specifies virtually all aspects of how one must drive- and that otherwise, the officer will have personal experience of “proper” and reasonable driving.

It was, until 18 September 2018, unreasonable to cultivate, possess or use any extent of cannabis. If a police officer attempts to shift his or her paradigm into one where some extent of possession is reasonable, he or she is utterly without any frame of reference.

In addition, he or she will not have been trained in any way as to what may amount to the proper or improper use of marijuana. Arguably there is no such standard which could dictate what may amount to improper use.

In fact, this concept of proper use of marijuana will most likely remain and anathema to police officers. Presumably they will not know what it may be used for and what it may not be used for. This must follow from the fact that there does not seem to be any consensus as to what it may be used for and how it may be used.

There is no consensus that one may only smoke it. Some people eat it. Some people may want to rub it on their skin. Others may want to bath in it. Still others may want to extract oil from it for the purposes of ingestion or for some form of healing or medicinal use.

There is no standard which informs what purpose one may put cannabis to and how it may be used – and because there is no standard, there cannot possibly be a reasonable as opposed to an unreasonable amount of marijuana to possess.

Following on that, there cannot possibly be a proper exercise of discretion as to what amount one may cultivate, possess or use for personal purposes.

The lack of a reference point for the cultivation, possession or use of cannabis – whereas the examples given to justify the refusal to specify an amount presume such a standard – pervades all examples which the Court relies on:

  • Of what would amount to a satisfactory account of possession of something where there is a reasonable suspicion that it is stolen.[22] The methods by which one may acquire property are utterly familiar to a police official.
  • Of how much liquor is more than is reasonably required for one’s

personal use – or for the use of other people residing with one:

“In terms of the Liquor Act the sale of liquor by a person who is not a holder of a liquor licence is a criminal offence. Section 167 of that Act then provides as follows in so far as it is relevant:

“167. Evidence in any criminal proceedings that any person who is not the holder of a licence …

(c) had on his or her premises more liquor than was reasonably required for his or her personal use and for the use of any person residing thereon; or

(d) bought or procured or had in his or her possession or custody or under his or her control more liquor than was reasonably necessary for consumption by himself or herself, his or her family or his or her bona fide employees or guests,

shall be prima facie proof of sale of liquor by the first mentioned person.”

From this it can be seen that the Liquor Act already deals with a situation where, initially a police officer must, in a particular case, take a view whether a person had more of something than is reasonably required for his or her personal use. That is liquor.”[23]

The significance of this example goes beyond the problem with reference points – but that, presumably because of this problem, this law has been repealed. The Liquor Act (59 of 2003) referred to contains no such provision. Instead, its predecessor (the Liquor Act 27 of 1989) did – but it has been repealed by the Liquor Act (59 of 2003).[24]

Thus, there is no such law – except one which has now been rejected. One may only surmise why this provision has been repealed.

  • The Court refers to the distinction which is drawn in the Income Tax Act[25]regarding what may constitute a “personal-use asset”. However, this distinction is one that a police officer will presumably never be required to draw. In addition, the example is self-defeating in that the relevant section goes on to define at some length what is and is not a personal use asset.[26]
  • Finally, the Court refers to a possession permit under the National

Environment Management: Biodoversity Act,[27] which permits as “a permit for keeping or conveying a specimen of a listed threatened or protected species for personal use in a person’s possession without carrying out any other restricted activity”. Yet the example does not in any way purport to require a law enforcement official to discern what may amount to personal use. It would seem that the permit will have been issued once some functionary is satisfied as to what the specimen will be used for and that there must – under law – be criteria for the exercise of this discretion.

In all of this, the most persuasive example is that of the existence of a discretion on an inspector or law enforcement official in respect of whether a person is in possession of more liquor than is reasonable for personal use. The fact that the law has been repealed is both telling and damning for the argument that it is unnecessary to stipulate an amount.

Retrospectivity

The Court was clear that – in virtue of a person’s right to privacy, it found that an adult enjoys the right to cultivate, use and possess cannabis, in a private place, for his or her personal consumption, in private.

It was clear that the legislation in conflict with these rights, was struck down or to be read appropriately, prospectively.

It would seem then that any conduct ostensibly in conflict with the impugned statutory provisions, prior to the Constitutional Court decision, enjoys no protection.

Yet, through the operation of other rights in the Constitution, and principles of Constitutional law and criminal law, it seems that the same protection now enjoyed by anyone, must be afforded everyone going back in time – at least to the date on which the Constitution took effect: 4 February 1997.

No punishment no crime

The first proposition is perhaps the one that would appear most readily. It is based on the notion that a person is entitled to the least punishment available for the offence for which he or she has been convicted in respect of the time period that has passed between when the conduct was committed and when the conviction was handed down.[28]

Under criminal law there can be no crime unless there is punishment for that crime.[29] And so in the absence of any possible punishment, the conduct in question cannot be a criminal offence.

Ground of Justification

It seems that although the Constitutional Court ordered that the striking down of the impugned legislation is not retrospective, the Constitutional Court at the same time recognised an entitlement to cultivate, possess and the use of cannabis that gives rise to what would translate into a justification in criminal law.

The effect in law of a justification is to exclude the unlawfulness of the conduct in question and exclude all possible criminal liability. Furthermore, this entitlement will have arisen at the moment the Constitution came into effect. In what follows, I set out this argument in more detail.

The Constitution requires a court – and ultimately, the Constitutional Court – to strike down any law or conduct inconsistent with the Constitution, to the extent of its inconsistency.[30] Furthermore, it grants the power to limit the retrospective effect of the order. Section 172(1)(b)(i) states:

(1) When deciding a constitutional matter within its power, a court-

(b) may make any order that is just and equitable, including-

(i) an order limiting the retrospective effect of the declaration of invalidity ,..[31]

However, there is a significant difference between the recognition of an unjustifiable infringement of a right and the striking down of a law because of that infringement.

That is, for instance, it is one thing for the Constitutional Court to find that the right to privacy is unjustifiably infringed by a law. It is another to order that, because of that infringement, that law is struck down.

The significance of this is that – although the striking down may be limited in its retrospective effect – there appears to be no question that the right to cultivate, possess and use cannabis in private (as circumscribed in the judgment) would constitute a ground of justification in the face of which – and on the basis of basic principles of criminal law – there can be no criminal liability.

This follows from the fact that the test for unlawfulness is judged by reference to the legal convictions of the community,[32] which are in turn informed, ultimately, by reference to the Constitution.[33]

The justification would have arisen, at least, on the date of the coming into force of the Constitution (4 February 1997).

It is arguable that a Court could make an order that the right is to be regarded as only having become unjustifiably infringed prospectively – because a Court may make any order that is just an equitable[34] – but no authority for this course can be found, nor does it seem to hold in logic.

On a diligent search of the jurisprudence, no case could be found where a court even considered limiting its reasoning or finding regarding the right. A logical inconsistency would arise because a court order can only follow upon the findings and reasons for the judgment.

A judgment must, of necessity, follow a particular logical form. A court can only grant an order once it finds reasons to do so – that exist, at least presently and to some degree retrospectively.[35] A court would render its reasoning null and void if it were to order that its reasons were to be regarded as only taking effect at the same moment as the relief it orders.

For these reasons, a Court decision that a right is being unjustifiably infringed, must relate to the present, and, to an extent, to the past.

Turning to the judgment of the Constitutional Court in the case in question – of MOJ v Prince – it must be observed that there is a recognition that the right to privacy conferred under the Constitution, was unjustifiably infringed by the pre-existing Drugs Act.

The Court then orders that, as a consequence,[36] it must strike down the legislation which is in conflict with the right to privacy. Its relief – of striking down the legislation – will take effect prospectively, but there is no suggestion that it was attempting to order that its reasoning was also somehow suspended in time and also only acted prospectively. That is, there is no trace that the court attempted to order that its recognition that the right to cultivate, use and possess dagga for personal purposes in private, was only prospective. The opposite conclusion is unavoidable, that it recognised – as part of its ratio – that one always enjoyed this right, at least from the coming into force of the Constitution.

The effect of this is that it appears that the Court recognised a justification for the cultivation, possession and use of cannabis, for personal purposes in private, which would exclude criminal liability for all such conduct – back into the past – until, at least, 4 February 1997.

Conclusion

It is necessary to remember that the statute which remains in place is extensive and that the wording adopted has been given extended meanings.

In answer to the questions regarding what constitutes a private place, the answer seems to be whatever place one may legitimately expect to be private: do you think its private; would society agree? As to how much one may possess or cultivate, there seems to be no answer and it appears that the discretion which the Constitutional Court entrusted to law enforcement officials is unjustifiable and even dangerous. Perhaps what we can take from this is the need for the legislature to intervene sooner rather than later. As a matter of practical advice, it would seem that the cultivation and possession of small amounts will be the safest course in the meantime.

Regarding the retrospective effect of the order, there are at least two reasons to think that, in law, while the order may be prospective only, it must have, in virtue of the rights and principles at work in criminal law, a retrospective effect. The first follows from a combination of the principles that an offender is entitled to the least punishment for a crime, and that there is no crime without punishment. Secondly, if, as the constitutional Court has recognised, one’s right to privacy entails the private possession, use, and cultivation of cannabis, then one has been justified in doing so, from the inception of that right. It follows in law then, that where one’s conduct is justified, one cannot incur criminal liability.


[1] BProc LLB, BA Hons (psyc) PhD, Practicing Advocate of the High Court of South Africa. This article was made possible by the support and insightful questions of Fields of Green, Forever. Thank you to Amanda Watson for her careful proof-reading.

[2] The decision of the Constitutional Court was delivered on 18 September 2018, reported as Minister of Justice and Constitutional Development and Others v Prince; National Director of Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others v Acton and Others [2018] ZACC 30 (“MOJ v Prince”).

[3] Paragraph 10 of the order: “It is declared that, with effect from the date of the handing down of this judgment, the provisions of sections 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 read with Part III of Schedule 2 of that Act and the provisions of section 22A(9)(a)(i) of the Medicines and Related Substances Control Act 101 of 1965 read with Schedule 7 of GN R509 of 2003 published in terms of section 22A(2) of that Act are inconsistent with right to privacy entrenched in section 14 of the Constitution and, therefore, invalid to the extent that they make the use or possession of cannabis in private by an adult person for his or her own consumption in private a criminal offence.”

[4] See paragraph 8 of the order: “To the extent that the order of the Western Cape Division of the High Court purported to declare as constitutionally invalid provisions of sections referred to in that order that prohibit the purchase of cannabis, that part of the order is not confirmed.”

The reason appears at paragraph 88, as follows: “A purchaser of cannabis would be purchasing it from a dealer in cannabis. Therefore, if this Court were to confirm the order declaring invalid provisions that prohibit the purchase of cannabis, it would, in effect, be sanctioning dealing in cannabis. This the Court cannot do. Dealing in cannabis is a serious problem in this country and the prohibition of dealing in cannabis is a justifiable limitation of the right to privacy. I will, therefore, not confirm that part of the order of the High Court because we have no intention of decriminalising dealing in cannabis.” (emphasis added)

This conclusion is arrived at by a linguistic analysis that purchase would involve sale – and therefore dealing. But that it would qualify as “dealing” was regarded as reason enough to deny purchase, and ultimately to deny dealing. The conclusion that dealing is a serious problem was arrived at without any discussion and as if it were self-evident.

[5] See paragraph 11 of the order: “It is declared that, with effect from the date of the handing down of this judgment, the provisions of section 5(b) of the Drugs and Drug Trafficking Act 140 of 1992 read with Part III of Schedule 2 of that Act and with the definition of the phrase “deal in” in section 1 of the Drugs and Drug Trafficking Act 140 of 1992 are inconsistent with the right to privacy entrenched in section 14 of the Constitution and, are, therefore, constitutionally invalid to the extent that they prohibit the cultivation of cannabis by an adult in a private place for his or her personal consumption in private.”

[6] See paragraph 6 of the order: “The cross-appeal is upheld in part to the extent that the reference in the order of the High Court to “in a private dwelling” or “in private dwellings” is replaced with “in private” or in the case of cultivation, “in a private place”.”

[7] See paragraph 102: “Another issue which must be decided is whether the order of invalidity that we make in this matter should operate with retrospective effect. I think it should not because it could have a disruptive effect on, and, cause uncertainty in, our criminal justice system. Accordingly, the order of invalidity in this case will operate prospectively.”

[8] See paragraph 12 of the order: “The operation of the orders in 10 and 11 above is hereby suspended for a period of 24 months from the date of the handing down of this judgment to enable Parliament to rectify the constitutional defects.”

[9] See paragraph 13 of the order: “During the period of the suspension of the operation of the order of invalidity:

  •  section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 shall be read as if it has sub­paragraph (vii) which reads as follows:

“(vii), in the case of an adult, the substance is cannabis and he or she uses it or is in possession thereof in private for his or her personal consumption in private.”

  •  the definition of the phrase “deal in” in section 1 of the Drugs and Drug Trafficking Act 140 of 1992 shall be read as if the words “other than the cultivation of cannabis by an adult in a private place for his or her personal consumption in private” appear after the word “cultivation” but before the comma.
  • the following words and commas are to be read into the provisions of section 22A(9)(a)(i) of the Medicines and Related Substances Control Act 101 of 1965 after the word “unless”:

“, in the case of cannabis, he or she, being an adult, uses it or is in possession thereof in private for his or her personal consumption in private or, in any other case,”.”

[10]          See paragraph 15 of the order: “Should Parliament fail to cure the constitutional defects within 24 months from the date of the handing down of this judgment or within an extended period of suspension, the reading-in in this order will become final.”

[11] Unless expressly excluded, all substances or plants included in this Part include the following:

(a) The isomers of the specified substances or plants, where the existence of such isomers is possible;

(b) the esters and ethers of the specified substances or plants and of the isomers referred to in subparagraph (a), as well as the isomers of such esters and ethers, where the existence of such esters, ethers and isomers is possible;

(c) the salts of the specified substances or plants, of the isomers referred to in subparagraph (a) and of the esters, ethers and isomers referred to insubparagraph (b), as well as the isomers of such salts, where the existence of such salts and isomers is possible; and

(d) all preparations and mixtures of the specified substances or plants and of the isomers, esters, ethers and salts referred to in this paragraph.

(e) all homologues of the listed substances (being any chemically related substances that incorporate a structural fragment into their structures that is similar to the structure of a listed substance or exhibit pharmacodynamic properties similar to the listed substances in this Part of the Schedule), unless listed separately in any Part of Schedule 2.

[12] The Drugs Act defines dealing and sale as follows:

‘deal in’, in relation to a drug, includes performing any act in connection with the transhipment, importation, cultivation, collection, manufacture, supply, prescription, administration, sale, transmission or exportation of the drug; … and

‘sell’, in relation to a drug, includes to offer, advertise, possess or expose the drug for sale, to dispose of it, whether for consideration or otherwise, or to exchange it; …

[13] See above footnote 11.

[14] Bernstein v Bester [1996] ZACC 2, 1996 (2) SA 751 (CC), 1996 (4) BCLR 449 (CC).

[15] At paragraph 47 (of Prince 4).

[16] Prince v Minister of Justice and Constitutional Development and Others; Rubin v National Director of Public Prosecutions and Others; Acton and Others v National Director of Public Prosecutions and Others (4153/2012) [2017] ZAWCHC 30; [2017] 2 All SA 864 (WCC); 2017 (4) SA 299 (WCC) (31 March 2017) (“Prince v MOJ”)

[17] See paragraph 98ff.

[18] At paragraph 85.

[19] See paragraph 80.

[20] At paragraph 111.

[21] At paragraph 115.

[22]  Under section 36 of the General Law Amendment Act 62 of 1955 – see paragraph 119; or under Sections 2 and 3 of the Stock Theft Act 57 of 1959. – see paragraph 120.

[23] At Paragraph 124.

[24] See schedule 2.

[25] 58 of 1962.

[26] See Section 53 (2) & (3):

(2)        A personal-use asset is an asset of a natural person or a special trust that is used mainly for purposes other than the carrying on of a trade.

(3)        Personal use assets do not include-

(a)        a coin made mainly from gold or platinum of which the market value is mainly attributable to the material from which it is minted or cast;

(b)        immovable property;

(c)        an aircraft, the empty mass of which exceeds 450 kilograms;

(d)        a boat exceeding ten metres in length;

(e)        a financial instrument;

(f)         any fiduciary, usufructuary or other like interest, the value of which decreases over time;

(g)        any contract in terms of which a person, in return for payment of a premium, is entitled to policy benefits upon the happening of a certain event and includes a reinsurance policy in respect of such a contract, but excludes any short-term policy contemplated in the Short-term Insurance Act;

(h)        any short-term policy contemplated in the Short-term Insurance Act to the extent that it relates to any asset which is not a personal-use asset; and

a right or interest of whatever nature to or in an asset envisaged in items (a) to (h).

[27] 10 of 2004 – in turn, in terms of GN R152 of 2007 of Act 10 of 2004.

[28] Section 35(3)(n) of the Constitution.

[29] See Burchell J, Principles of Criminal Law, 5th ed: “Nullem crimen sine poena is distinct from nulla poena sine lege and stresses that punishment is an integral factor in the concept of a crime and serves to distinguish a crime from other forms of wrongdoing.” (at page 40).

[30] Section 172(1)(a) provides: (1) When deciding a constitutional matter within its power, a court-

(a) must declare that any law or conduct that is inconsistent with the Constitution

is invalid to the extent of its inconsistency …

[31] See Ex Parte Women’s Legal Centre: In Re Moise v Greater Germiston Transitional Local Council

2001 (4) SA 1288 (CC) at paragraphs 11-14 for an application of this principle.

[32] Minister van Polisie v Ewels 1975 SA 3 590 A.

[33] Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) 2001 SA 4 938 CC.

[34] Under section 172(1)(b) of the Constitution.

[35] Because the problem will have a history and often the law will have been the way it is – as it is impugned before the court – for a considerable time before the hearing. This was recognised in Ferreira v Levin No And Others; Vryenhoek and Others v Powell No and Others 1996 (1) SA 984 (CC)where Kriegler J stated – in relation to the doctrine of “ripeness”: “Suffice it to say that the doctrine of ripeness serves the useful purpose of highlighting that the business of a court is generally retrospective; it deals with D situations or problems that have already ripened or crystallised, and not with prospective or hypothetical ones. Although … our Constitution acknowledges the criteria for hearing a constitutional case are more generous than for ordinary suits, even cases for relief on constitutional grounds are not decided in the air.” (at paragraph 199). In the same case, O’Regan J observed: “As a general rule, private litigation is concerned with the determination of a dispute between two individuals, in which relief will be specific and, often, retrospective, in that it applies to a F set of past events.” (paragraph 229)

[36] See paragraph 101: “Since I have concluded that the limitation is not reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, an order will have to be made declaring the relevant provisions constitutionally invalid to the extent that they criminalise the use or possession of cannabis in private by an adult for his or her personal consumption in private.” (emphasis added). See also paragraphs 10 and 11 of the order – where the court uses the word “therefore”.