Centre for Environmental Rights

Over two years ago, South Africa saw the decriminalisation of the use, possession and cultivation of cannabis by an adult in private in the landmark judgment of Minister of Justice and Constitutional Development v Prince (Clarke and Others Intervening); National Director of Public Prosecutions v Rubin; National Director of Public Prosecutions v Acton (Prince III). This judgment was the culmination of a journey that started in the 1990s. This case note is a critical assessment of that judgment. In it, I argue that some of the characteristics of judicial minimalism can be seen in Prince III, namely, incomplete and incoherent reasoning and a focus on the desired outcome. The case note focuses on two main problems in the Court's reasoning. First, the lack of adequate reasoning around the nature of the right to privacy and an articulation of what being 'in private' entails. Second, a limited and incomplete limitations analysis in terms of section 36(1) of the South African Constitution. Both failures contribute to an unsatisfactory outcome which has confused the public, as well as the policing authorities. ACKNOWLEDGEMENTS: An earlier version of this case note was presented at Constitutional Court Review X Conference in August 2019. I thank fellow conference participants, Rafiq Phillips, David Bilchitz and Andrew Konstant for their support, and two anonymous reviewers, whose contributions are greatly appreciated.