© Olena Kachmar – 123RF.com
“Prior to this case, if you smoked in your own home, you could have been arrested. You would have had to use the defence of privacy in order to fight the charge. Now, you cannot get arrested. That’s the nub of it,” clarifies Constas, who is a director of BBM Attorneys.
“In Sectional Title, your own home would include your ‘section’ and registered or rule-created exclusive use areas. So, you could sit and smoke a dagga joint in your lounge or on your balcony; but only if your balcony is part of your section, or if it is an exclusive use area either registered in the Deeds Office or allocated to you through the development’s Conduct Rules,” she states.
Constas cautions, however, that those living in sectional title developments should take care to check whether the balcony is, in fact, registered as common property, as they sometimes are. “Strictly speaking then, this area can be utilised by everyone and is not in law ‘private’.”
Smoking dagga in your garden may also be problematic if the garden is common property, she notes. “Growing it on common property would also be an issue. If the garden is a private, exclusive use area – registered or rule-created as such – then you would be in a position to use the Constitutional Court case.”
Constas believes that even in a private garden in a sectional title complex, the question of accessibility could become problematic if a resident was growing marijuana.
Measures would need to be put in place to ensure that the area is secured and only accessible to the owner for private use. Having a flowerbed filled with dagga plants in an area accessible to the complex’s other residents, including children and teenagers, could be cause for concern.
While many sectional title developments have clubhouses where residents relax and socialise, Constas says the Court ruling does not mean that this may now include indulging in marijuana beside the pool. “There can definitely be no smoking of marijuana at the clubhouse or pool area. The ruling specifically states that you can only smoke it in the privacy of your home. Marijuana is distinguishable from cigarettes and alcohol, so even if these are allowed at the clubhouse, the smoking of dagga on any common property area in a sectional title development is not legal.”
Duplex situations in sectional title developments also pose an issue, she contends. “Where you have a duplex situation, it would have to be borne in mind that the actual physical smoking of the marijuana in the privacy of one’s own home is legal. So, if you smoke on your exclusive use patio, you are within your rights so to do. Smoke is insidious, however, and will move beyond the boundaries of your own home. Consequently it would have to be treated the same as cigarette smoke or other smells that could offend neighbours in the complex. The latest Sectional Title legislation’s new Rule 30(e) under the heading dealing with the use of sections and common property may offer an answer. It states that owners or occupiers of sections or exclusive use areas must not do anything within these areas that will have a ‘material negative effect’ on the value or utility of any other section or exclusive use area.”
Constas says that there may be place for Sectional Title trustees to set out certain conditions in the rules of the scheme, but that they would not be able to ban the smoking of marijuana in their rules.
It could not be banned – even if 75% of the complex took a special resolution.
While there are many misconceptions around the latest Constitutional Court ruling on marijuana, Constas stresses that it simply reinforces the right to privacy. “In a Sectional Title development, however, where neighbours live in close proximity to each other, that can be complex concept.”