Daniel Friedman
4 minute read
18 Sep 2018
10:25 am

Dagga partly decriminalised at Constitutional Court

Daniel Friedman

The ban on private possession, consumption and private cultivation of the plant at home was ruled unconstitutional.

From left to right: Jules Stobbs, Myrtle Clarke, Gareth Prince and Jeremy Acton at the Constitutional Court in November 2017. Picture: https://fieldsofgreenforall.org.za

Today, South Africa’s highest court in effect decriminalised both the use and cultivation of cannabis in private.

Deputy chief justice Raymond Zondo, more often found recently probing alleged state capture at the commission of inquiry he helms, delivered the unanimous judgment.

The court not only upheld but expanded on Dennis Davis’ landmark judgment last year that adults using and growing cannabis in the privacy of their own home should be left in peace.

The ban on private possession, consumption and private cultivation of dagga at home was ruled unconstitutional.

In addition to this, parliament has been given two years to change sections of both the drug trafficking act and the medicine controls act after these sections were found constitutionally invalid.

While parliament will take up to 24 months to adapt the law to reflect all these changes, Justice Zondo explained that individuals are allowed to smoke privately in their own home in the meanwhile.

Zondo also stressed that both selling the substance and use of it by minors is still illegal.

At the Western Cape high court, Davis found that the ban on weed-smoking at home violated individuals’ constitutional right to privacy.

The court has now ruled in agreement with Davis and against the state’s attempt to have his judgment reversed.

The Western Cape High Court case was brought by Rastafarian lawyer and activist Gareth Prince, alongside Jeremy Acton, leader of South Africa’s ‘Dagga Party’ Iqela Lentsango.

WATCH: Hundreds in Jozi gather for legalisation of dagga

Myrtle Clarke and Jules Stobbs, better known as South Africa’s indomitable ‘Dagga Couple’, signed on to the case as applicants in the hopes of securing a judgment with further-reaching implications than just the right to consume the plant privately at home.

Since 2013 Stobbs and Clarke have been arguing a separate case they have dubbed “The Trial of the Plant” in the High Court in Pretoria that seeks to get all existing laws on the cultivation, use, and sales of the plant revoked and rewritten in parliament.

The two cases are connected, with the constitutional court asking why they should give judgment on Prince and Acton’s case before waiting for the outcome of the Dagga Couple’s one in Pretoria.

“Our argument is that it would unnecessarily prejudice this case for its outcome to be dependent on our separate high court case,” Stobbs told The Citizen.

READ MORE: Dagga trial to be broadcast

Stobbs, who alongside Clarke had flown back to Johannesburg especially to hear the judgment, said: “It’s a massive day for us. We’ve got sweaty palms and dry mouths. We’ve been waiting with bated breath for this baby for nine months.”

The pair expressed optimism before going in: “We fully expect the ConCourt to be on our side, we just don’t know to what degree.

“One of three things could happen.

“They could tell us they’re not going to uphold the judgment, but if they were going to do that they would have taken nine weeks, not nine months.

READ MORE: Good news on cannabis

“They could reinforce the Western Cape judgement or even expand on it, ruling comprehensively on the plant in a way that goes beyond the question of whether or not you should be able to legally use it in your own home.

“Or they could say we haven’t got enough to go on and send us back to Pretoria.”

The third option would have presented a bit of a “catch 22” for the pair, who would have to raise the legal fees to allow them to continue fighting the Pretoria high court case.

“We’d love to be able to fully ventilate every aspect of the issue in Pretoria, but it would cost over a million rand to do it. We wouldn’t mind if money was no object,” said Stobbs.

“We joined as applicants so we could bring all the information we’d submitted in our other case and offer it to the ConCourt too, so they can hopefully come up with a comprehensive judgment, that takes into account the facts presented at both cases,” he said.

While the pair will no doubt be happy about the judgement, whether or not it is comprehensive enough to stop them from needing to continue with their fight in Pretoria remains to be seen.

“Whatever happens, we have a lot of work to do,” said Stobbs on Tuesday morning, prior to the judgement being handed down.

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