1. From the advent of the Constitutional Court’s judgement in the matter of Minister of Justice and Constitutional Development and Others v Prince (Clarke and Others Intervening) and 2 Other matters, declaring the prohibition on the use of cannabis for private purposes unconstitutional in 2018, property practitioners and scheme executives alike have keenly awaited the implementation of the Cannabis for Private Purposes Act, 07 of 2024 (“Cannabis Act”).
2. On 03 June 2024, Legislature finally fulfilled the mandate bestowed upon it by the
Constitutional Court, and the Cannabis Act was promulgated and gazetted.
3. For almost six years, community scheme stakeholders have erred on the side of caution in dealing with any and all cannabis related circumstances. At last, the Cannabis Act has
brought forth the need-to-knows in relation to the one’s tolerance, and another’s
indulgence, within a community scheme context. Or so we hoped…
4. This article aims to explore:
4.1. The confines of a “private place”, where the use of cannabis is allowed.
4.2. The instances when an adult is prohibited from using cannabis, regardless of
being in a “private place”.
4.3. Exploring the quagmire of nuisance.
4.4. What remains taboo in the realm of cannabis.
4.5. The implementation date of the Cannabis Act, its regulation(s), and the general
implications of the thereof in a community scheme’s business.
Where is the use of cannabis allowed in a community scheme?
5. Privacy is not something that I’m merely entitled to, it’s an absolute prerequisite – Marlon Brando. In the Prince matter, it became evident that the constitutional right to privacy played a pivotal part in the legalisation of the use of cannabis within the confines of one’s private place for private use.
6. In terms of Section 1 of the Cannabis Act, a “private place” is defined, amongst other things, as: “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 to.
7. Within a community scheme context, the use of cannabis in one’s individual registered
section or erf will undoubtably form part of the ambit of a “private place” where the use of
cannabis would be allowed.
8. The stalemate, however, will be the use of cannabis within the common property of a
community scheme, as the general public does not have access thereto, and it is trite law
that such common property is not considered to be a public place. The question will thus
be, can such indulgences be allowed within the common property?
8.1. Unfortunately, there is no proverbial “silver bullet” in relation to the determination
as to whether the use of cannabis can be allowed on common property.
8.2. Community schemes must err on the side of caution before blindly permitting the
use of cannabis on common property. It is suggested that community schemes
should consider including rules relating to the use of cannabis within the
community schemes, by way of an amendment of its conduct rules.
8.3. In doing so, members of a community scheme will be entitled to regulate the
behavioural rules pertaining to the use of cannabis within the confines of its land
and buildings.
9. Ultimately, property practitioners and scheme executives would have to gauge what the
members’ views are in respect of the use of cannabis on common property and that such
views are adequately regulated within a community scheme’s conduct rules.
10. Interestingly enough, the Cannabis Act does not provide a member with carte blanche on the use of cannabis within his/her/their individual registered section or erf, as there will be instances where the use of cannabis will remain taboo.
When would a member not be allowed to use cannabis within his/her/their unit or erf?
11. The liberty of the individual must be thus far limited; he must not make himself a nuisance to other people – John Stuart Mill. An important rule of construct in the legal sphere is that most rights are not absolute, and the use of cannabis in one’s unit or erf, is no different.
12. In terms of Section 2(2) of the Cannabis Act, no adult may use cannabis in a “private place”:
(a) in the presence of a child or non-consenting adult person; or
(b) (i) within a reasonable distance from a window of, ventilation inlet of, doorway to, or entrance into, aa another place; or
(ii) that forms part of any public place where persons congregate within close proximity of one another and where the smoke is likely to cause a disturbance or nuisance to any person at that place. [own emphasis]
13. When consideration is given to the prescripts of Section 2(2), the proverbial “love thy
neighbour” principle becomes crystalised and one’s indulgence should not be considered
a nuisance to another.
14. In addition thereto, one must be mindful of the blanket prohibition of the use of cannabis in the presence of minor children and non-consenting adults.
15. The judiciary have dealt with the umpteen disputes relating to nuisance, and it is important that property practitioners and scheme executives explore the possible circumstances where the use of cannabis may constitute a disturbance or nuisance.
The quagmire of nuisance
16. In the matter of Minister of Water and Environmental Affairs & Another v Really Useful Investments & Another, the Supreme Court of Appeal coined the phrase by stating that: “[e]ven at common law no person could use property owned by him or her in a manner that harmed the rights of others. Nuisance involves the unreasonable use of property by one neighbour to the detriment of another. Examples include repulsive odours, smoke and gases drifting over the plaintiff’s property from the defendant’s land […]”.
17. The enigma behind nuisance relates to the reasonability, or lack thereof, of an adult’s
cannabis use and, where determined to be unreasonable, such use will constitute a
nuisance, which then prohibits the use of cannabis in terms of the Cannabis Act.
18. In GB Boerdery Beleggings (Edms) Bpk and Another v Somerville 62 (Edms) Bpk and
Another, the Supreme Court of Appeal reference the writings of JRL Milton, wherein a
yardstick in relation to reasonability was cited with approval, in that:
An interference with the property rights of another is not actionable as a nuisance unless it is unreasonable.
An interference will be unreasonable when it ceases to be a “to-be-expected-in-the-circumstances” interference and is of a type which does not have to be tolerated under the principle of “give and take, live and let live”. The determination of when an interference so exceeds the limits of expected toleration is achieved by invoking the test of what, in the given circumstances, is reasonable. The criterion used is not that of the reasonable man but rather involves an objective evaluation of the circumstances and milieu in which the alleged nuisance has occurred. The purpose of such evaluation is to decide whether it is fair or appropriate to require the complainant to tolerate the interference or whether the perpetrator ought to be compelled to terminate the activities giving rise to the harm. This is achieved, in essence, by comparing the gravity of the harm caused with the utility of the conduct which has caused the harm. [own emphasis]
19. Reasonability, in the context of cannabis use, therefore, demands a measure of tolerance by one’s neighbours before any conduct can be considered to be a nuisance. Various factors may have to be considered in order to determine whether one’s indulgence may constitute nuisance to the rest of the members of a community scheme.
20. When consideration is given to one’s indulgence, the most anticipated gripe that another may have, could possibly be the noxious smell emanated from the use of cannabis. In the matter of Jacobs NO and Others v Hylton Grange (Pty) Ltd and Others, the Western Cape Division of the High Court, was tasked with exploring the ambit of nuisance within the context of an odorous smell, and the High Court outlined some factors worth exploring in relation to the realm of odorous smells, which includes, among other things:
20.1. The locality of the property(ies) to one another;
20.2. The suitability of a persons’ use of his/her/their property;
20.3. The frequency of the interference;
20.4. The extent and duration of the interference;
20.5. The time(s) at which the interference occurs;
20.6. The measure(s) and/or step(s) taken by the individual to avoid and/or limit the
interference;
20.7. The existence of alternative(s) at an individual’s disposal in order to restrict the
interference; and
20.8. Comparing the gravity of the interference with the utility or benefit thereof.
21. Upon this premise, it becomes evident that when an in-depth analysis of nuisance is undertaken, each and every instance of alleged nuisance must be considered on a case-
to-case basis, and a community scheme must ensure that the interference caused by the use of cannabis is, in fact, unreasonable.
22. Therefore, when a decision is made by community scheme stakeholders to take further
steps against an individual’s indulgences, they/it must be satisfied that the individual’s
conduct is objectively unacceptable within the four corners of the Republic’s jurisprudence, or they/it may be faced with the consequences of an adverse cost order.
23. Regardless of whether the individual’s conduct constitutes a nuisance, instances remain where a person’s dealings with cannabis remains taboo.
What remains taboo in the realm of cannabis?
24. As alluded to earlier, the use of cannabis in the presence of minor children and/or non-
consenting adults remain prohibited in the strongest of terms. Additionally, the following is also considered taboo, inter alia:
24.1. Cannabis can only be used for a “private purpose”, as defined in the Cannabis
Act, which means for the exclusive use, possession, and cultivation of cannabis
for such an individual(s). Therefore, the sale of cannabis for any form of
consideration (whether in the form of monies or otherwise), without the requisite
licensing, remains prohibited.
24.2. Cannabis must always be concealed from the public view.
24.3. The locality of where the cannabis is used remains an important consideration as,
the use of cannabis in a public place remains taboo.
24.4. Further elaborating on the issue of cannabis and minor children, it is important to
understand that minor children are prohibited from using, dealing, or possession
of cannabis.
25. In addition to the aforesaid, Section 6 of the Cannabis Act, empowers the Cabinet to publish regulations and/or directives in relation to the use, cultivation, and/or possession of cannabis, and these regulations will, in turn, further govern:
25.1. The maximum quantity of cannabis that a person may have in his/her/their
possession, whether in public or in his/her/their individual unit.
25.2. The maximum amount of cannabis plants that can be cultivated by an individual
for private use.
25.3. The conditions, restrictions, prohibitions, obligations, requirements, and
standards in respect of the transportation thereof.
When, where, and how?
26. When consideration is given to the various uncertainties that remains proverbially
“unanswered” in the Cannabis Act, such as the quantities one is allowed to possess, it
becomes evident that that the publication of the regulations will provide for such answers.
So, do not run for the hills (yet)!
27. Akin to that of the Property Practitioners Act, the Cannabis Act includes a provision for the publication of the commencement date of the Cannabis Act. Therefore, although the
Cannabis Act has been published in the Government Gazette, the date of implementation
is yet to be proclaimed.
28. We are of the view that upon the completion and publication of the regulation(s) pertaining to the Cannabis Act, the regulations will provide for the commencement date, as well as attending to the final cosmetic additions and certainties that the Cannabis Act has left everyone longing for.
29. Until then, scheme executives and managing agents alike, must be aware of the
implications, and take the necessary step(s), so as to ensure that a community scheme’s
administration, in the realms of cannabis, aligns with the purview of the Cannabis Act.
Conclusion
30. Iron rusts from disuse; water loses its purity from stagnation […] even so does inaction sap the vigor of the mind – Leonardo da Vinci. In a community scheme context, one’s conduct rules suffer the same result, stagnation results in outdated, irrelevant, unreasonable and unenforceable rules, for the simple reason that one’s rules must be dynamic and capable of change in, and around, the judicial landscape and the convictions of the public. Inaction therefore leads to inefficient rule enforcement.
31. We believe that a community scheme’s governing rules must be a dynamic document, that is capable of evolving, insofar as it requires development. Accordingly, community scheme stakeholders are tasked with crafting and implementing conduct rules, so as to provide the inclusion of cannabis use, and the regulation thereof within one’s community.
32. At DTB Attorneys, we are committed to continuously pushing the boundaries of exceptional community scheme service in order to ensure that our clients remain at the forefront of anything community scheme related.
33. Our community scheme department has already included amendments to its governance documents, so as to ensure that the provision is made for the Cannabis Act, as well as ensuring that a community scheme is adequately protected, and its role players are
sufficiently informed, of cannabis use within a community scheme.
34. By regulating the use of cannabis in your conduct rules, a community scheme will: reduce contravention(s) by its members in the realm of cannabis, promote transparency and certainty, and in the extreme cases, it will enable a community scheme to issue fine(s)
and/or penalty(ies) for the contravention or “unneighbourly” use of cannabis.
35. Should you require any assistance in relation to your community scheme endeavours, do not hesitate to contact the writer hereof.
36. We trust you find the above in order.
Yours faithfully,
DU TOIT BURGER ATTORNEYS INC
(Electronically transmitted)
DILEN HEERSCHOP
