What is my Private Space Anyway?

By |Published On: December 7th, 2020|
Cannabis Can Help South Africa

Well.  That’s an easy question for any civilian, but the cops seem to have massive private space issues.

Section 14 of the Constitution of South Africa defines the Right to Privacy as such:

“14. Privacy – Everyone has the right to privacy which includes the right not to have—

(a) their person or home searched;

(b) their property searched;

(c) their possessions seized; or

(d) the privacy of their communications infringed.”

In reading the famous 18 September 2018 Concourt judgement, Judge Zondo added that it “can legitimately be said that the Right to Privacy is the right to be left alone”.

Paul-Michael Keigel, partner at Schindlers Attorneys, in an interview with KFM, said a private space could be defined as “any space the public doesn’t have access to as a matter of right … i.e.  your car would be a private space”.  He added, “If you have a filter at the door (at a private event), and you inform people, then that is a private space”.

Open spaces can be private too.  A Private Open Space, according to the City of Johannesburg Land Use Scheme 2018, means the use of a building/s and/or land, with or without access control and which can be used as a private ground for sports, play, rest and recreation, or as an ornamental garden; pleasure ground; golf course; or for buildings reasonably required in connection with such uses.

Transcript of Concourt Ruling:

‘The issue of the cultivation of Cannabis in private by an adult for personal consumption in private should not be dealt with on the basis that the cultivation must be in a dwelling or private dwelling. It should be dealt with simply on the basis that the cultivation of Cannabis by an adult must be in a private place and the Cannabis so cultivated must be for that adult person’s personal consumption in private. An example of cultivation of Cannabis in a private place is the garden of one’s residence. It may or may not be that it can also be grown inside an enclosure or a room under certain circumstances. It may also be that one may cultivate it in a place other than in one’s garden if that place can be said to be a private place.’

The reason the Concourt changed the wording of the High Court Order was because the High Court had limited the right to possess, consume or cultivate Cannabis to the confines of one’s home or dwelling.  In the words of Judge Zondo, “The effect of the order of the High Court is that an adult would not be committing any crime by using or possessing or cultivating Cannabis in a private dwelling or in a home for his or her consumption but the moment he or she steps out of the private dwelling or home, he or she would be committing a criminal offence. This means that an adult who has Cannabis in his or her pocket for his or her personal consumption within the boundaries of a private dwelling or home would not be committing an offence but he or she would be committing an offence if, for example, he or she were to step outside of the boundary of the home or private dwelling while such Cannabis remained in his or her pocket and he or she possesses it for his or her personal consumption.”

Notice how he referred to pockets.  Pockets are your private space too. Logic would define personal space as anywhere that the general public does not have access to, such as your home, your car, your pockets, your shoes or socks, the bra area, a bag or backpack (gents would you ever dare go rummaging in a lady’s handbag, even with permission?).

All South Africans enjoy the Constitutional Right to Privacy.

ALL people, including those who are homeless.  In their case their home IS the backpack, or sleeping bag, or the trolley they pull behind themselves everywhere they go.

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About the Author: Jo

General Assistant @ Fields of Green for All

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