Section 21 (1)(a)(i) of the Drugs and Drug Trafficking Act 140 of 1992 is declared constitutionally invalid:
- If in the prosecution of any person for an offence referred to -
(a) in section 13(f) it is proved that the accused -
(i) was found in possession of dagga exceeding 115 grams;...
it shall be presumed, until the contrary is proved, that the accused dealt in such dagga or substance;
The argument was that this section placed the burden of proof on the accused, which is contrary to Section 25(3) of the Constitution:
- Every accused person shall have the right to a fair trial, which shall include the right - ...
(c) to be presumed innocent and to remain silent during plea proceedings or trial and not to testify during a trial;
Presumption of dealing based solely on an amount possessed no longer applies in criminal proceedings in South Africa.
The court recognises an adult's right to privacy, including the right to cultivate, possess and use cannabis in private.
Sections 4(b) and 5(b) of the Drugs Act read with Part III of Schedule 2 to the Drugs Act and sections 22A(9)(a)(i) and 22A(10) of the Medicines Act read with Schedule 7 of the Medicines Act was declared inconsistent with the right to privacy guaranteed by section 14 of the Constitution.
Parliament was given 24 months to correct the constitutional defects in the two Acts.
Minister of Justice and Constitutional Development and Others v Prince (Clarke and Others Intervening); National Director of Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others v Acton:
Following the Presidential Cannabis & Hemp Phakisa Action Lab, National Police Commissioner, Lieutenant General SF Masemola, issued a directive to all members of the South African Police Service reiterating the rights and responsibilities that all members should be aware of in terms of cannabis arrests.
In a landmark ruling, the Labour Appeal Court ruled in favour of Bernadette Enever, the employee dismissed by Barloworld for testing positive for THC.
President Cyril Ramaphosa signed the Cannabis for Private Purposes Act into law. Adults have the right to cultivate, possess and use cannabis in private. Dealing remains prohibited. The minister must publish regulations regarding the amount of cannabis that can be cultivated, possessed and transported at any given time.
Celucolo Michael Mkhonza was wrongly convicted of dealing in cannabis by a Mpumalanga Magistrates Court. The magistrate presumed him guilty of dealing based on a section of the Drugs and Drug Trafficking Act that had been declared unconstitutional in 1995. The case was sent for review and the judgement set aside.