Abstract

FOSTER, Sebastian William. The right to privacy in the decriminalisation of psilocybin mushrooms in South Africa. Law democr. Dev. [online]. 2023, vol.27, pp.1-30. ISSN 2077-4907.  http://dx.doi.org/10.17159/2077-4907/2023/ldd.v27.1.

This article assesses the right to privacy as a ground for challenging the constitutionality of the criminalisation of psilocybin mushrooms. In doing so, it discusses the right to privacy as found in section 14 of the Constitution of the Republic of South Africa, 1996 (Constitution). Drawing on Constitutional Court case law, the article argues that the right to privacy is a fundamental right that deserves paramount protection, even in instances where individuals engage in illicit activities within the confines of their personal realm of privacy. Accordingly, the prohibiting laws, notably the Drugs and Drug Trafficking Act 140 of 1992 and the Medicines and Related Substances Act 101 of 1965, do prima facie limit an individual's right to privacy, and therefore an analysis in terms of section 36 of the Constitution is necessary. A section-36 limitations analysis is accordingly presented, through which it is concluded that the nature and importance of the limited right outweighs the importance and purpose of the criminalisation. This paper argues that the current articles of legislation, which criminalise psilocybin mushrooms, are not justifiable, in that they unjustifiably limit the right to privacy. As such, the criminalisation of psilocybin mushrooms falls short of the standards implemented in section 36 of the Constitution and is concluded to be unconstitutional.

Keywords : privacy; psilocybin mushrooms; constitutionality; limitations analysis; constitutional interpretation; drug law reform.

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