WRITTEN SUBMISSIONS BY AMICUS CURIAE IN THE SUPREME COURT OF APPEAL OF SOUTH AFRICA BLOEMFONTEIN
SCA Case No: 1233/2022 High Court Case No: 2101/2021
If Use and Possession is Lawful, No Purpose in Prohibiting Dealing
It is submitted that the State has failed to identify any other governmental purpose, other than to prohibit use and possession. But if use and possession is lawful, then nothing is achieved by prohibiting dealing.
Indeed, the mere fact that this court is confronted with a debate about whether cultivation of cannabis is rendered unlawful, merely by dint of the fact that someone is cultivating on someone else’s behalf and not for their own purposes, demonstrates the arbitrariness of the distinction and, thus, the irrationality of the prohibition on dealing.
The question should not be whether cultivation on behalf of someone else constitutes dealing. The question should be, “if that constitutes dealing, then what is wrong with dealing?”
The distinction between dealing and mere cultivation for private use in this sense, with respect, is inappropriately artificial.
Cannabis Causes Less Harm Than Alcohol and Tobacco
Another factor to bear in mind is that the constitutional court in Prince 3 emphasised, based on the position taken by the South African Central Drug Authority, that “an assessment of available data in other countries indicates, inter alia, that, among alcohol, tobacco and cannabis ‘alcohol causes the most individual and social harm . . .”.
Why then, should dealing in cannabis be prohibited when dealing in other substances such as cigarettes and tobacco (which are equally if not more harmful than cannabis), is permitted? It is submitted that the difference in treatment between cannabis and these other substances can no longer be justified with reference to a governmental purpose designed to prevent possession and use and, ultimately, abuse.
What is more, the distinction drawn by the court a quo between the permissible cultivation of cannabis for oneself and cultivation for someone else, is not explained. It is unhelpful to observe that cultivation for someone else is not “private use” and that it is suggestive of “dealing” when the very question to determine is whether dealing (in this fashion) ought to be prohibited at all.
Prohibition Cannot Exist for its Own Sake
A prohibition cannot exist for its own sake. It must achieve a clearly defined governmental purpose. The governmental purpose previously identified can no longer be relied upon in light of the judgment in Prince 3 and it is not clear what other governmental purpose is now relied upon by the State.
And yet, even if it may be said that a prohibition on dealing does, in some respects, give effect to a legitimate governmental purpose, then the prohibition would still fall to be struck out because the impugned provisions are overbroad and the professed purpose could be achieved through less restrictive means.
It can hardly be argued, with respect, that regulation of cannabis dealing is not less restrictive than a blanket prohibition and the respondents’ submissions regarding the cost of regulation cannot, with respect, be sustained, not only in light of the common cause fact that the legislature is already in the process of considering legislation which seeks to regulate dealing in cannabis, but also it is simply untenable to suggest that the State should be entitled to jail people for doing something, simply because it does not have the capacity to regulate how it should be done.
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