Recent Case: General principles and specific offences

• Citation: (2023) 36 SACJ 123
• DOI: https://doi.org/10.47348/SACJ/v36/i1a6
• Published date: 31 July 2023
• Pages: 123-137
• Author: van der Linde, D.
• Date: 31 July 2023

General principles and specic

offences

DELANO VAN DER LINDE

Faculty of Law, University of Stellenbosch

1 Possession and dealing in cannabis

1.1 Commercial cannabis growing clubs

In The Haze Club (Pty) Ltd v Minister of Police [2023] 1 All SA 280

(WCC) (‘Haze C lub’), the Western Cape Division of the High Court

was tasked to decide whether a so-called ‘grow club model’ (‘GCM’) of

cultivating and harvesting cannabis was compliant with the judgment

in Minister of Justice and Constitutional Developm ent v Prince (Clarke

Intervening); National Director of Public Pro secutions v Rubin;

National Director of Public Prosecutions v Acton 2018 (6) SA 393 (CC)

(‘Prince’).

Adriaan Anderson comprehensively canvased the judgment in

Prince, but certain key aspects bear repeating (see A Anderson ‘Recent

cases: Criminal law’ (2019) 32 SACJ 86 at 96 –103). The decision in

Prince follows an order of constitutional invalidity by the Western

Cape Division of the High Court in Pr ince v Minister of Justice and

Constitutional Developme nt; Rubin v National Director of Public

Prosecutions; Acton v National Director of Public Prosecution s

[2017] 2 All SA 864 (WCC) (‘Prince High Court’). Section 4(b) of the

Drugs and Drug Trafcking Act 140 of 1992 (‘DDTA’) (read with

Part III of Schedule 2) as well as s 22A(9)(a)(i) of the Medicines and

Related Substances and Control Act 101 of 1965 (‘Medicines Act’)

(read with Schedule 7 of GN R509, GG 24727, 10 April 2003) was

unconstitutional only insofar it prohibited, limited, and crimi nalised

the use and possession of cannabis by an adult person in private. Such

a prohibition was found to be unreasonable and unjustiable ‘in an

open and democratic society based on human d ignity, equality and

freedom’ (Prince supra at para [101]). Furthermore, the Constitutional

Court found that s 5(b) of the DDTA (read with Part III of Schedule 2),

along with the denition of ‘deal in’ under the denitions clause of

the DDTA was found unconstitutional insofar as it prohibited the

RECENT CASES

https://doi.org/10.47348/SACJ/v36/i1a6

123

(2023) 36 SACJ 123

© Juta and Company (Pty) Ltd