The Western Cape High Court has made a landmark ruling, declaring that it is an infringement to ban the use of dagga by adults in private homes. In making the ruling on Friday, it has allowed for the possession, cultivation and use dagga at home, for private use. It has also ruled that Parliament must change sections of the Drug Trafficking Act, as well as the Medicines Control Act. It has 24 months to do so.
The successful application to decriminalise dagga was driven by Dagga Party leader Jeremy Acton and Rastafarian Garreth Prince who argued on December 13 and 14 last year for the decriminalisation of the herb.
Acton, Prince, and 18 plaintiffs applied to the court for the Criminal Prohibition of Dagga Act (sections 4b and 5c), read with certain sections of Part III of Schedule 2 of the Drugs and Drug Trafficking Act, to be declared unconstitutional.
Those sections make it a crime to possess a drug, unless it is for a variety of medical reasons. The Drugs and Trafficking Act defines what constitutes a drug. They are also challenging the Medicines and Related Substances Act.
They submitted that the laws prohibiting dagga use are unfair, discriminatory, outdated, and applied disproportionately to black users. The two have been helping people arrested for possession of dagga by obtaining a stay of prosecution, pending the outcome of their application.
Prince was arrested for possession of dagga in 1989, while a law student at the University of the Western Cape. He paid a R60 fine and thought that was the end of it. When he graduated and applied to the Cape Bar to be admitted as an attorney, he was rejected because of the dagga conviction, and because he refused to apologise for it. To Prince, using dagga was a religious choice as a Rastafarian. He unsuccessfully brought an application to the Constitutional Court to have it decriminalised for religious purposes. He became a community legal adviser, but was arrested again in 2012 for growing dagga in his garden in Kraaifontein.
What does the judgement say?
We highly recommend reading it as most of the important parts are in pretty simple English. The best summary of the judgement can be found on the reliable media platform, GroudUp.
Does this mean that I can plant my seeds NOW?
Well, no. You are still running the risk of arrest but if you are arrested IN YOUR OWN HOME you can use this judgement for your defence in court. You will still probably spend at least a night in jail, lose your Cannabis and spend some money on your legal defence. You can still be arrested anywhere outside your home and for that you can #JoinTheQueue.
What amounts will I be allowed to grow at my home?
The judgement leaves this wide open and is something that the government will ultimately decide upon. However, we are busy formulating our proposals for legalised regulation in SA and this will be used as evidence in The Trial of the Plant. Join The Green Network to be part of the conversation around the draft.
What if I don’t have a place to grow, where would my weed come from?
Now that is a very good question! The same place it has always come from? This is currently the situation in The Netherlands and is commonly known as decriminalisation. We have never advocated for this because it leaves this massive grey area that should be filled with South Africans contributing to the economy and creating jobs. Never fear, we have this aspect wrapped up to deal with, both at The Trail of the Plant and within the proposals mentioned above.
What about the MCC’s guide for growing Cannabis for medicine?
Dead in the water, in our opinion. How can you keep something in Schedule 6 when you can grow it at home??!! It will be interesting to see how it unravels, especially since Judge Davis was very scathing about Dr Joey Gouws’ evidence in the judgement. He was not very impressed with the oppositions evidence in general but very cognisant of the fact that Jeremy and Ras Garreth were representing themselves. Power to the people, Fields of Green for ALL, not the MCC’s foreigners and pharma companies.
Below is a copy of the full judgement.