AUTHOR: LUKE CHILVERS
On 18 September 2018, in the matter of 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 (CCT108/17) [2018] ZACC 30; 2018 (10) BCLR 1220 (CC), the Constitutional Court held that the provisions of the Drugs and Drug Trafficking Act 140 of 1992 that made the use or possession of cannabis in private by an adult person for his or her own consumption in private a criminal offence were inconsistent with right to privacy entrenched in section 14 of the Constitution and, therefore, invalid.
As a result of the judgement in Prince, the use of marijuana in your home is lawful, however does the uncertainty surrounding the law relating to the use of marijuana present problems in the enforcement of the law? This question will be considered in light of new developments in the legislation relating to the private recreational use of cannabis.
On 28 May 2024, the Cannabis for Private Purposes Act 7 of 2024 (“the Act”) was assented to. The Act provides, amongst other things, that: –
“An adult person may-
(a) use or possess cannabis; and
(b) without the exchange of consideration per occasion provide to, or obtain from, another adult person, cannabis, in a private place for a private purpose.”
The Act has therefore clearly resulted the codified right for persons to use cannabis in private for recreational purposes, however, how far does this right span? One might argue that the Act is not thorough enough and does not provide clear enough guidelines relating to the private, recreational use of cannabis.
Parliament has sought to cure the clear defects in the law relating to the recreational use of cannabis and possession of cannabis by persons for private purposes. On 6 February 2026, the Ministry of Justice and Constitutional Development published draft regulations to the Act, which regulations provide for the limit of the quantity of cannabis which may be possessed by a person for their private recreational use.
The regulations specify that the legal amount of cannabis one may carry is 750kg. This is a arguably substantial amount and one may argue the promulgation of these regulations will provide for a greater deal of clarity surrounding the private possession of cannabis.
However, as of the date of this article, the Act has yet to be put into force by the relevant Minister and as such, the law remains in a state of limbo as regards how much cannabis one may carry or how much cannabis will land someone into criminal trouble.
Furthermore, more questions remain as regards the recreational use of cannabis.
One such question is: will the commercial sale of cannabis to private users be legalised and regulated? At this point in time, there is no certainty relating to the legality of the selling of cannabis for private use, and cannabis sellers run a risk of find themselves in legal trouble.
Another question relates to the meaning of private use and private place in the Act. In the Act, “private place” is defined as (amongst other things), any place, including a building, house, room, shed, hut, tent, mobile home, caravan, boat or land or any portion thereof, to which the public does not have access as of right.
In regard to the above definition, what would happen if cannabis was used in a one private home which is being shared by persons or a home which certain members of the public may have access to at a certain point in time? This may create criminal legal issues for persons who would otherwise believe themselves to be acting within the bounds of the Prince judgement and the Act.
In the Act, “private purposes” is defined as for the exclusive use, possession and cultivation of cannabis by an adult person with the intention to keep, store, transport or be in control of cannabis, in a manner that conceals it from public view.
The Act purports to govern the transport of cannabis by persons for private purposes. However, the wording of the Act is not specific enough to provide certain in terms of whether one can transport a reasonable amount of cannabis in one’s vehicle (for private use) without threat of being arrested by police.
The generality of the Act and the Prince judgement and the fact that the Act and the regulations have not come into force yet, present problems for South Africans who wish to use cannabis recreationally in a legal manner. Some people who act in good faith and within the bounds of the law may still end up in a situation where it is left up to a police officer’s interpretation of the law, to decide whether or not they are arrested for using, possessing or transporting cannabis.
It is the constitutional right of the citizens of the Republic to be subject to criminal laws which carry sufficient certainty, to guide their conduct. In this sense, the legislation is currently inadequate and requires development.
If you ever find yourself in a run-in with the law surrounding your lawful use of cannabis, our attorneys are criminal law experts who are more than capable of assisting you.
