If caught with dagga, apply for stay of prosecution
People arrested for possession of dagga should be advised by their legal representative to apply for a stay of prosecution pending the Constitutional Court judgment on whether laws banning dagga use at home are unconstitutional, a legal expert said.
Constitutional lawyer at Shepstone and Wylie, Nerisha Besesar, also cautioned that people be careful when signing an admission of guilt.
“In many instances, people who are charged criminally end up signing admissions of guilt without realising that they will then have a criminal record.”
The ban on the private use of dagga was found by the Western Cape High Court to be unconstitutional but this March 2017 judgment needs to be approved or rejected by the Constitutional Court.
The case was heard in the Constitutional Court in November but judgment has still not been made.
Meanwhile, the so-called dagga couple, Jules Stobbs and Myrtle Clarke, have managed to help 90 people obtain a stay of prosecution for possession of, or dealing in dagga, with the latest granted in the Johannesburg high court last week.
A stay means people cannot be prosecuted for dealing in or using marijuana until Clarke and Stobbs’s legal challenge is complete.
The couple are asking the Pretoria court to strike down all laws banning the use, cultivation and sale of marijuana for recreational and medical use.
They were arrested in 2011 for dealing and possession after police raided their home, which is built in a grain silo near the Lanseria airport.
Their argument in the high court is that the laws banning dagga are irrational and do not serve the purpose of reducing the use or abuse of marijuana, and that the initial ban of dagga was a racist, colonial law.
Clarke and Stobbs’s high court case will not resume until the Constitutional Court judgment is made.
If the Constitutional Court rules that laws banning dagga use are unconstitutional, thus legalising dagga use, the pair may not need to return to court, their lawyer explained.
the couple have managed to help 90 people obtain a stay of prosecution