REFLECTING ON THE CRIMINAL REGULATION OF MARIJUANA III: When regulation is to be preferred to prohibition

In the concluding brief of this series, Kimera Chetty considers both the propriety and benefits of regulation over prohibition with regards marijuana in South Africa.

On more than one occasion Helen Suzman spoke out against arbitrary and unjust laws criminalising the production and use of marijuana. In this series of briefs, we revisit the issue in three parts. In the first brief, Matthew Kruger provided some context, by commenting on the prosecution of a married couple for their production and personal use of medical marijuana. He also explored the neglected value of freedom, explaining that sometimes the state can only fulfil its duty to respect and protect our rights by leaving us alone. In the second brief, Arvitha Doodnath considered the science relating to the social impact of marijuana, debunking some common myths. The series concludes with Kimera Chetty considering how we should go about regulating actions that may cause harm, but whose criminal prohibition would also cause harm to individuals and the community.



In the late 1930s, Reefer Madness, a propaganda movie, was released. The plot revolved around the dangers of cannabis or marijuana – portrayed as leading to hallucination, homicidal mania, reckless driving, infidelity, and aggressive and manic behaviour. The film was originally funded by a church group as a means of warning parents, and society at large, about the dangers of cannabis. It soon attained cult classic status, but it missed the mark of educating society, instead falling squarely into the category of one of the worst movies made of all time.  

We now know that cannabis isn’t going to spur bloody rampages fuelled by lurid visions of demonic pixies after forcing you to cheat on your significant other. Empirical studies on the harms of cannabis use in general are inconclusive, though some people (the very young and the pregnant, for instance) are best advised to avoid it. 

The non-too-subtle urging from the clergy for the laity to take heed lest they fall down the path of irredeemable immorality is par for the course.  However, in a constitutional democracy, the state requires more justification than moral prescription to avoid the wages of sin before it can pass laws which impinge on our liberty or freedoms. 


An uncertain danger

In the case at hand, the arrest of the Smits were made in terms of Section 13 (d) of The Drugs and Trafficking Act (“the Drugs Act”) [1], for possession. The prohibition is informed by a presumption – dealt with in Section 21 (1) (b) of the Drugs Act – that if you are found to be in possession of cannabis plants on land that you either own, occupy or are in charge of, then you are presumed to also be dealing in the distribution of cannabis plants. Distribution, of course, is also illegal. The defence of the Smits is that possession and use was solely to aid in the palliative care of Mrs Smit’s battle with cancer. This defence is, according to existing law, inadequate. 

Cannabis is listed in Schedule 7 of the Medicines Act [2] which sets out substances which one may not “acquire, use, possess, manufacture or supply” unless issued with a permit from the Director-General of Health. The Smits’ legal defence rests on the unfair inclusion of medical marijuana in Schedule 7 – they expound the many health and economic benefits that decriminalisation would bring for patients suffering from debilitating conditions. Globally, this argument is gaining traction among medical practitioners and patients who recognise the value and usefulness of cannabinoids in alleviating suffering caused by chronic pain conditions and debilitating terminal illness. 

Even if the use of marijuana is demonstrated to have no significant palliative effect, it is still necessary to interrogate the reasons for its prohibition. 

We aren’t sure why marijuana is criminalised to the extent that is. On a reading of relevant Acts, marijuana is described as a “dangerous dependence-producing substance”. “Dangerous” is a loaded descriptor.  However, in terms of the Acts, it is not a defined one. “Dependence-producing”, suggests the vice of addiction – but addiction alone is not sufficient grounds for criminalisation: consider alcohol and cigarettes. 

The law treats the possession of marijuana as an inchoate crime, but does not do this for other “dangerous, dependence-producing substances”. Legislative interventions in this regard have seen regulatory strides in accommodating the right to consume, possess, sell and manufacture alcohol and tobacco. 

John Stuart Mill carefully considered the interplay of rights and freedoms between society and the individual.  The state’s ability to restrict a freedom should be contingent on that restriction operating to protect some other interest – usually, the right of others to not be harmed. [3] Harm, it would seem, is a malleable concept.


The bifurcations of volition and compulsion

Possession of alcohol or tobacco aren’t treated as inchoate crimes in the same way that possession of marijuana is, notwithstanding that one could get drunk, drive, and cause an accident, or one could light up a cigarette in the presence of others and compromise their health through second-hand smoke. Both instances arguably may cause more egregious harms than the inconclusive and presumed harms of marijuana. 

Yet, the law makes a separation between the criminal act committed, and the use of alcohol or tobacco. If you assault someone while drunk, it is the assault for which you will be prosecuted, and not your drunkenness. 

Where there is reasonable expectation of imminent harm to society, the law does step in to set limitations or prohibit certain acts. Driving whilst over the blood alcohol limit is an offence, as is smoking in public spaces, without outlawing the use of alcohol and tobacco.  Regulation of use is appropriate and the law should be consistent. Regulation rather than prohibition is appropriate for the possession and use of marijuana. 

Presumed harms, un-evidenced and causally faulty, form the basis for the criminalisation of marijuana. If the punishment must fit the crime, it is difficult to assess what the crime is in this instance. 

A moralising state that wields its paternalistic authority over society denies its citizens not only their autonomy to act as self-determining moral agents, but infringes on their liberty, reprehensibly, under the guise of justice. 


Regulation over prohibition

Increasingly, the arguments for regulation outweigh prohibition. The negative health effects of over-indulging in fatty foods are well documented – the booming fast food industry in developing and developed countries have similar detriments, a direct effect to consumers health and a knock-on effect on the healthcare industry and state welfare systems. This has not seen a ban on fast food outlets or even limitations on much fast food one may indulge in. 

Interventions have sought to empower the consumer through the creation of “informed decision making”. 

Consumers have a right to know the nutritional value of meals purchased at fast food outlets – and this presumably encourages one to opt for a salad at Greasy McGreasers instead of the extra-large-sodium-rich French fries cooked in last week’s oil. But the state does not commission secret fast food agents to stand guard at outlets to ensure that consumers make the right choice, or even one least likely to result in a clogged artery. 

The state affords consumers the right to act as rational decision-makers because to deny this would by an infringement on the base level of freedom and liberty: self-determination. 


Effect on the black market

Criminalisation also bolsters the black market, which thrives when consumers cannot access something through legal means. Without regulatory frameworks in place, the state cannot monitor the quality of marijuana being bought and consumed, control supply and demand, or effectively tackle the problem of trafficking and smuggling between borders. 

Where demand is undeterred by a ban or prohibition, this does not stand as reason in itself to default to regulation - the state often has well-justified cause for using legislation to curb our behaviour or access to things that result in the creation of harm, to ourselves or others. The blanket prohibition of marijuana harkens back to a Nixon-esque era which saw the emergence of “the war on drugs”.  The state’s mandate to create effective anti-drug policy is an important and necessary intervention. But net harm from legalising marijuana is not established.  

The intersection of dignity, freedom and liberty requires that the law tread with caution when seeking to make such interventions. 

This is especially true when said intervention is, ostensibly, for our own good. 



There certainly are drugs whose abuse and resultant harms are an all too familiar scourge on many communities within South Africa – dependency, violence and crime become inextricable parts of the problem. But marijuana is not among them. It is arguably less dangerous than tobacco and alcohol.  Tobacco and alcohol create addiction and the risk of direct and resultant harm (or danger) to the user and others.  It is shallow justification for the state to rely on claims of social protection, or effects caricatured under the catch-all banner of “drug abuse”. 

By opting for prohibition instead of regulation of marijuana the state over-reaches. When it comes to medical marijuana, it has severely limited the healthcare industry and patients alike in exploring the effectiveness of cannabinoid use. More generally, the prohibition against use and possession denies citizens control over their own bodies – and minds. 

Inherent in the exercise of freedom, liberty and self-determination is the ability to opt out of patronising protections. Noble intentions can have ignoble consequences – such as legislation which impinges on how we individually construct the good life. 


Kimera Chetty
Legal Researcher