“It’s about privacy in your own home, it’s not about on the streets,” said Acton while a jubilant crowd of Rastafarians swirled around him following a judgment that gave users some wiggle room relating to criminal charges for private possession or use of the plant.
With a police van parked nearby, Acton said that laws for use outside the home would still have to be determined in a parliamentary process, but Friday’s judgment was welcomed as a kick-start of the political processes needed for change.
Acton, who is leader of the Dagga Party, and Rastafarian Garreth Prince had argued their own case in the court in December in front of judges Dennis Davis, Nolwazi Boqwana and Vincent Saldhanha.
Saldhanha had coincidentally represented Prince after his arrest for dagga while still a law student in 1989.
“What this means is that South Africans can use cannabis in their homes,” said Prince.
“At least the police can focus their attention on serious and hard crime and stop wasting valuable resources, time and effort, on pursuing people for cannabis.”
He explained that the police can still go into a home and arrest a person for cannabis, but the judges ruled that the right to privacy can be used as a defence when charged.
“As to whether they would be able to give your cannabis back, that is something that still needs to be ironed out,” he said.
The intricate order starts by declaring sections of the Drugs and Drug Trafficking Act and sections of the Medicines and Related Substances Control Act unconstitutional and invalid.
In the lead up to the judgment, Davis said it was perfectly clear to the court that the right to privacy was central to the application by Prince and Acton, which was heard in December.
He said once the court had decided that privacy was the main issue, they had to examine the limitations on this right, as set out in section 36 of the Constitution.
Their job was to decide whether the State had justified its limitations on the right to use dagga.
“Because we found that the legislation breaches the right to privacy, and on the available evidence presented by the State, it [the limitations] cannot be justified in terms of section 36,” said Davis.
Two-year suspension of invalidity
Davis said it was not up to the judges to decide whether or not there were social problems linked to drugs, or that drug-related problems should be ignored.
The issue for them was that the legislation was too broad.
The judges felt that it was not up to them, but Parliament to decide how to correct this. Their ruling suspends the order of invalidity of the relevant sections of law for two years, to give MPs time to fix the problem themselves.
A suspension of invalidity for two years effectively means that the old laws stand until two years is up. Then the judges have to decide what to do about people arrested while the laws are being amended.
For this, the judges decided that the right to use, grow or possess dagga in the privacy of one’s home can be used as a “defence to a charge”.
The order does not specify whether the defence must be presented in court, or at the point of arrest, saying only “a charge”.
Here is the order Davis handed down on behalf of his colleagues:
“The following provisions are declared inconsistent with the Constitution of the Republic of South Africa and are invalid only to the extent that they prohibit the use of cannabis by an adult in a private dwellings [sic] where the possession, purchase or cultivation of cannabis is for personal consumption by an adult;
“1.1 Sections 4 (b) and 5 (b) of the Drugs and Drug Trafficking Act s 22A (10) thereof read with part III of the schedule 2, to the Drugs Act and
“1.2 Section 22 A (9)(a)(i) of the Medicines and Related Substances Control Act 101 of 1965 (the Medicines Act) read with Schedule 7 GN R509 published in terms of Section 22 A (2) of the Medicines Act.
“This declaration of invalidity is suspended for a period of 24 months from the date of this judgment in order to allow Parliament to correct the defects as set out in the judgment.
“It is declared that until Parliament has made the amendments contemplated in Paragraph 1 or the period of suspension has expired, it will be deemed to be a defence to a charge under a provision as set out in paragraph 1 of this order that the possession, or cultivation of cannabis in a private dwelling is for the personal consumption of the adult accused.”
Stay of prosecution
Acton said that he is due in the Bellville Magistrate’s Court on Monday over a dagga charge, and he would immediately alert the magistrate to the High Court’s judgment. He said he feels confident that that would be the end of the matter.
Comment from the National Prosecuting Authority was not immediately available to explain what would happen to pending cases, but Acton and Prince have been helping people get a stay of prosecution pending Friday’s judgment.
Acton said he had not read the full judgment yet, but at first glance, the order does not limit the quantity that can be legally cultivated at home, and does not deal with potential commercial use.
Prince’s career as a lawyer was ruined after a student dagga conviction led to him not being able to register with the Cape Bar.
He lost a previous bid to have the plant legalised for religious reasons and has been offering legal advice as a paralegal around where he lives in Kraaifontein, between Cape Town and Paarl.
While people sang Rastafarian songs around him, he said he was looking forward to being able to finally practice law as an advocate. DM
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