I. The defendants
For anyone keeping tabs on the big moments in the fight to legalise cannabis in South Africa, Tuesday 24 November is a date that should probably be circled in bright red. That’s because Tuesday was the day that the state gave its reasons, in a footnoted and cross-referenced 18,000-word document, why cannabis users should continue to be treated the way they’ve always been treated in this country: like antisocial delinquents on good days, deviant criminals the rest of the time. Not that the news arrived as much of a surprise. The South African body politic, aside from a few parliamentary gestures by two of the smaller opposition parties, has flat out ignored the positive socioeconomic data that’s emerged from the recent legalisation and/or decriminalisation moves in countries such as Argentina, Bangladesh, Canada, Chile, Israel, Jamaica, Spain, Uruguay and the United States (to name a few). Point being, when it comes to our national director of public prosecutions, our minister of health, our minister of justice and constitutional development, our minister of social development, our minister of trade and industry, our minister of international relations and cooperation, and our minister of police, the South African legalisation campaign shouldn’t fool itself that anything but the following applies:
Government has a clear legitimate interest in prohibiting the abuse of harmful drugs, including cannabis. The objective of the impugned provisions is to ensure the prevention of harm caused by the abuse of dependence-producing drugs and the suppression of drug trafficking is necessary.
These two sentences, inelegant though they are, comprise item 9.2 in the “heads of argument” furnished by the state in a potentially groundbreaking case – due to kick off on 7 December in the Western Cape High Court – that names the above six ministers and one national director as joint defendants. Item 9.3 goes on to note that the “restrictions” against cannabis use in South Africa (as outlined in the Drugs and Drugs Trafficking Act of 1992 and the Medicines and Related Substances Act of 1965) do not infringe on the constitutional rights of any category of cannabis users, by which is meant medicinal users too. Further, as the state maintains in item 9.4, an “important consideration is that South Africa is obliged to fulfil its international obligations to fight the war against drugs.”
Clearly, the South African government has chosen to ignore something else of global significance here – an official document, circulated (and mysteriously withdrawn) by the United Nations Office on Drugs and Crime in late October, which acknowledges that the war on drugs has failed. While the UN paper admitted that a law-and-order approach to drug use has “contributed to public health problems and induced negative consequences for safety, security, and human rights,” the South African state still holds that the “general prohibition on the use, possession and dealing in cannabis is consistent with the [South African] constitution.”
And that’s just in the introduction.
On page 16 of the state’s 100-page heads of argument, we read this: “According to Dr. Gouws, cannabis has many harmful effects which may be categorized [sic] as follows: acute, neurological, cognitive impairment, respiratory system, cardiovascular system, reproductive system. Cannabis also has behavioral effects on its users, in particular adolescents.”
Dr. Gouws, a local pharmacist and registrar of medicines, is no doubt an expert on the matter, but what the state declines to mention are the reams of peer-reviewed academic papers published by professors at top-tier medical schools across North America and Europe that assert the exact opposite – that assert, in fact, the emergent scientific status of cannabis as a powerful curative agent for a growing range of chronic and terminal illnesses (if the South African government requires something more authoritative than medical research out of Harvard or Cambridge, may we humbly suggest this latest installment in the “Weed” series from Dr Sanjay Gupta of CNN).
Moving swiftly along, on page 41 of the state’s document we read this: “The Western Cape Province has recorded increased gang violence which is directly linked to an illegal drug subculture. Mandrax and cannabis are wildly trafficked in the Western Cape but the drug of choice is crystal methamphetamine.” Followed by this: “The DPP [Director of Public Prosecutions] maintains that any form of exemption will not be feasible as it will burden the objectives of the reduction of the drug trade.”
Which appears to be faulty logic at best, complete bollocks (cannabis is a “drug” because, hey, it’s always been a drug) at worst.
And then, on page 47, this: “[The Department of] Social Development concludes that the legalisation of cannabis will retard the gains it has made in developing the social fabric of the South African community, following centuries of trauma, marginalisation and poverty meted out by apartheid policies.”
To which we feel obliged to direct the state to the representative extract from the Natal Indian Immigrants Commission Report of 1887, as quoted at the top of the second article in this series, wherein it is made abundantly clear that the original cannabis prohibition laws in South Africa (the oldest laws of their type on Planet Earth) had everything to do with the self-same apartheid policies!
Yup, we’re shouting now, but it is what it is… and so to proceed without further ado to the origins of the court case under discussion.
II. The plaintiffs
It all began back in January 2011 with a teaspoon of cannabis seeds and a R50 fine. The teaspoon of seeds was what Jeremy Acton was caught with – on a tip-off, he told the Daily Maverick, from the landlord of his place in the Montagu district, Western Cape – and the R50 was what he needed to pay to make it all go away. But Acton, whose worldview at the time was intimately linked to the plant and its various properties, did not want the matter to go away. What he wanted was for the court to recognise his constitutional right to smoke dagga. When he informed the prosecutor of this, adding that he intended to argue the constitutional merits of the case himself, the prosecutor said, “Ooh, you’re going to open a can of worms with that.” In hindsight, it appears that the prosecutor was spot on. Acton did indeed open the proverbial can, as demonstrated by the matter in the Western Cape High Court due to be heard less than two weeks from the date of this writing. Question is, does Acton’s can contain the type of worm that can eat through the state’s woodwork?
In attempting an answer, we must rewind to 8 February 2012, when Acton first represented himself in the Western Cape High Court, appealing the judgment of that magistrate in Montagu. Acting Judge Leslie Weinkove, the court records show, was a little impatient on the day – he might’ve been peeved that the applicant before him was not a legal professional (was in fact a pig farmer with a degree in building arts), and it seems he wanted to give the man a lesson in the dignity of the law.
“Do you know the judgment of Chaskalson, Ackermann, Kriegler and Goldstone?” Weinkove asked, reeling off a list of some of the most fabled jurists South Africa has ever produced. Acton replied, without hesitation, that he had in fact made a detailed study of the so-called “Prince” case…
And here we must briefly digress to introduce Gareth Anver Prince, who in 2002 had sued the president of the Cape Law Society in a matter the above heads of argument would identify throughout the 100-page document as “Prince II”, thereby implying two things. 1) By 2002, Prince was already famous for taking on the state regarding his constitutional right to smoke dagga. 2) Prince would eventually join his cause to the cause of Acton….
With that, back to the courtroom. “And do you know what they say?” asked Weinkove.
“They said it was not granted,” Acton replied, referring to the jurists’ refusal of Prince’s appeal, “because the application was based only on section 15 of the constitution, which was the right to the religious use of cannabis, and it was regarded as not sufficient because the state wished to maintain the prohibition in the name of preventing harm. So I will be bringing a much, much, much broader application should this application be granted.”
Weinkove then launched into a rapid-fire monologue, a string of run-on sentences, with a phrase about “prohibiting conduct considered by [the court] to be antisocial,” and a grand finale averring that “the courts had to enforce the laws whether they agree to them or not, and [that the court in the Prince case] held further that using dagga was something that was prohibited and did not infringe the constitution or the bill of rights and your application is doomed to failure and I am not prepared to grant you an order staying prosecutions in the court, in any magistrate’s court on these papers.”
Aaaannd… breathe in. In other words, Weinkove was telling Acton to go to hell because, again, everybody including the legislators knew that hell was where dagga smokers traditionally went (whether the court agreed with that or not).
“With respect your honour,” said Acton, “I bring before the court the precedent established in the North Gauteng High Court, the application by Stobbs and Clark case number 27601 was granted by the Honourable Justice Bertelsman on 19 July 2011. I also bring into question that judgment which you’ve just quoted. Who on earth decides that the use of dagga is antisocial? And that is a subjective…”
But Weinkove was having none of it. “Because of scientific research and a belief among the majority of people that it is,” he said, cutting Acton short. “It is a hallucinogenic drug and it causes aberrative [sic] behaviour. The fact that you had been using for 20 years as you say doesn’t assist the case where there is scientific evidence. [No] civilised country in the world that I know of has legalised the use of dagga.”
Hmm. Well, it was 2012. How was he supposed to guess? But you get the drift – some members of the South African bench, temporary or not, have a hard time distinguishing fact from cultural conditioning when it comes to the cannabis plant. This is important because it impacts directly on those of us who would rather get stoned on a Friday evening with our homeys than polish off a bottle or eight of Klein Constantia at a dinner party for acting judges, art dealers, and journalism ethics professors.
Anyway, aside from Acton and Prince, the other plaintiffs in the matter set for the Western Cape High Court on 7 December (in their order of appearance on the state’s heads of argument) are: Jonathan David Rubin, Ras Menelek Barend Wentzel, and Caro Leona Henegin. They have made it this far because Acton, as leader of the Dagga Party (a Cape-based political party also known as Iqela Lentsangu) has refused to let the likes of Weinkove and the Montagu magistrate get the better of him. Partly as a result of his decision to take his Dagga Party paraphernalia down to the local cop shop – to explain, as he put it, his “intentions” – Acton quickly notched up a few more cannabis related charges. Eventually, he convinced a judge that the stay of prosecution granted to Julian Stobbs and Myrtle Clarke (the Dagga Couple) in the North Gauteng High Court in July 2011 would have to apply to the Western Cape too.
“And then we just started getting many, many successful stays in the Western Cape,” Acton told the Daily Maverick, referring to the 17 people, busted for possession, who’ve now joined themselves to the case. “Everyone we helped had to file the same papers, the same summons questioning the constitutionality of the prohibition. It’s like a mini mass action, this.”
III. The chances
“What about the division of forces?” I asked Acton. “The Dagga Couple’s case is being heard in March next year in Pretoria, yours in Cape Town in less than two weeks. Both of you are challenging the constitution. Aren’t you working against each other?”
Acton admitted it was a good question. He said he had only respect and fondness for the Dagga Couple, and that he’d met them a few times. “The difference is we have done no fundraising,” he added – a reference to the Dagga Couple’s Indiegogo campaign, which has currently raised around $20,000 – and that he and Prince were running the case without legal professionals. That night he sent me an email to elaborate. “I would just like to add that in the Western Cape we are not calling expert witnesses at great cost like the Dagga Couple is doing, as we claim that there is enough evidence in the public domain to bring the case and have the information about the plant accepted by the court.”
Acton stressed that he was challenging section 9 of the constitution, which, according to his papers, the current cannabis prohibition violates on the grounds that cannabis users are treated differently in law from users of alcohol and tobacco. “We believe that the points we present are enough to prove that the law is unconstitutional and irrational and malicious,” Acton wrote (his emphasis), “and the debate then only centres on the appropriate Section 36 limitation of rights, which cannot rationally be more than the limitations on alcohol.” (Section 36, it will be remembered, allows the rights listed in the Bill of Rights to be limited only to the extent that the restriction is reasonable and justifiable in “an open and democratic society based on human dignity, equality and freedom.”)
For Acton, the hinge factor is this: “Will the judges act for the interests of the people, or will they defend the existing corporate interests that profit from this prohibition? This prohibition is in place to support the power of the global money elite.”
Acton is partly right, of course. One way or another, the global cannabis prohibition has made a lot of powerful people more powerful, a lot of rich people richer. But he’s also partly wrong – judges tend towards the touchy when laymen without legal degrees allege global conspiracies in their court, and especially so when the matter under judgment is a direct challenge to the constitution.
Which leads on to Ras Gareth Prince, who Acton spoke of affectionately with the Rastafari prefix. “As a result of his experience, we thought we could do it better than the professionals themselves,” he told me. “Ras Gareth Prince was not given his right to practice, not even his right to do articles, but he is as sharp as any advocate in law today. He has given me a lot of guidance and help, and his papers have been extremely helpful.”
On 7 December, when 5,000 people are expected to converge on the Western Cape High Court in solidarity with Acton and Prince – 4,400 have already replied “going” on the Dagga Party’s Facebook page (12,000 “invited”; 1,400 “interested”) – the court will pretend to be unfazed by the spectacle. “I’ve told the judges in my heads of argument that they’re responsible for the outcome of their refusal,” Acton said, just before our interview ended.
He then came close to apologising for himself, although in hindsight it was never gonna happen. “I don’t know if I’m out of line, but that’s my view.” DM
Photo: Members of the Philippine Drug Enforcement Agency (PDEA) and the Philippine National Police (PNP) burn some 6.9 million pesos ($147,059) worth of marijuana and shabu (also known as methamphetamine) in Camp Bado Dangwa, La Trinidad, Benguet, north of Manila November 6, 2015. REUTERS/Harley Palangchao.
Speaking Kurdish in Turkey was illegal until the 1990s.