The decriminalization of cannabis: Hallucination or reality

• Jurisdiction: South Africa
• Date: 24 May 2019
• Published date: 24 May 2019
• Citation: (1999) 12 SACJ 184
• Author: S Lötter
• Pages: 184-192

The decriminalization of cannabis:

Hallucination or reality

S LÖTTER*

1 Introduction

The criminalization of the possession of cannabis has never really been at

issue in South Africa. Recently, however, the cat has been set amongst

the pigeons, or rather the Rastafarians among the establishment, as the

decriminalization of the possession of cannabis has been suggested as a

strategy to decrease the prison population.

Despite the severe sentences prescribed for possessing cannabis, the

cannabis culture continues to grow. Cannabis is a popular substance, easily

obtainable and used for a plethora of reasons ranging from health to

recreation. As a prison sentence remains a sentencing option, the popularity

of cannabis contributes to the overcrowding of prisons.

The allure of a diminished prison population should not, however, be

allowed to obscure the difficulties surrounding decriminalization. Decrim-

inalization does not only imply the removal of the criminal sanction, it also

involves policy change.

1

If decriminalization involves policy change, the question arises as to

whether the decriminalization of the possession of cannabis should be dealt

with in terms of a general crime policy or as part of a health policy.

Alternatively, does the complexity of legislating for a dependence-producing

substance not justify the creation of an independent drug policy.

The drug 'policy' followed in South Africa can best be described as

prohibitionary. In the course of this paper both prohibition as drug policy

as well as the alternative policy of decriminalization will be evaluated.

2 The window of opportunity

According to Kingdon, 'policy windows', opportunities for action on given

initiatives, open infrequently. Despite their rarity, major changes in public

policy often occur as a result of such 'policy windows'.

2

A 'policy window' in respect of the possession of cannabis has been

opened. The fact that the decriminalization of cannabis has been advanced

* BA LLB (RAU) LLM LLD (Pret),

Professor of Law, Unisa.

1

A DiChiara & JP Galliher 'Dissonance and contradiction in the origin of marihuana

decriminalization' 1994

Law and Society

41 at 43.

2

Kingdon (1984) 174-175 as quoted by Dichiara & Galliher op cit (n 1) 43.

184

(1999) 12 SACJ 184

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