Philip John Badenhorst – Attorney
Richards Attorneys
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On 18 September 2018 the Constitutional Court decriminalised the use or possession of cannabis by an adult person for private personal consumption and it further decriminalised the cultivation of cannabis for such person’s private consumption.
Although it is legal for cannabis to be used and cultivated in private it is still illegal to deal therein, sell to others or to use it outside the boundaries of your own property.
This leads to the question on whether you can smoke it in your section in a sectional title scheme?
In a sectional title scheme, you are the owner of a section as shown on the sectional title plan and the boundaries of your section is determined by making use of the median line test. This space constitutes your house and here you are free to use cannabis.
You will be allowed to use cannabis in your exclusive use area, which has been registered as such in the Deed’s Office, or allocated to you through your scheme’s conduct rules. In short, you are allowed to use cannabis in your section or your exclusive use area.
However, you are not allowed to use or cultivate cannabis on the common property of your scheme as you are not the owner thereof. Common property will include parking bays, swimming pools, gardens, etc. For this reason, it is very important to familiarise yourself with the sectional title plans to determine what constitutes your section, exclusive use area and common property.
Another factor to take into consideration, especially if you are living in a duplex section, is Prescribed Management Rule 30(b) and (e) of the Sectional Titles Schemes Management Regulations. In terms of these rules: “The Body Corporate must take all reasonable steps to ensure that a member or any other occupier of a section or exclusive use area does not use a section so as to cause a nuisance to any other member or occupier and also not to do anything to a section or exclusive use area that has a material negative effect on the value or utility of any other section or exclusive use area”.
The cannabis smoke can thus, like any other braai or cigarette smoke, cause a nuisance to your neighbour. A nuisance is caused when an owner or occupier of a section engages in an activity that unreasonably and unfairly disturbs, annoys, or interferes with the use or enjoyment of another’s property.
For any further enquiries please feel free to send an email to legal4@riclaw.co.za