Dagga-using pair get legal reprieve – for now

TWO Eastern Cape residents who have been using dagga for years breathed a sigh a relief after the high court stopped their prosecution.

Kailyn Austin and Darryle Clarke were charged in the East London Magistrate’s Court with dealing in dagga and magic mushrooms.

The two were bust‚ in separate incidents‚ by an undercover police officer posing as a pupil‚ complete with school uniform.

But Austin and Clarke lodged an application for a stay of prosecution in the Grahamstown High Court‚ citing Justice Minister Michael Masutha as one of the respondents.

They had hoped to find a reprieve in the judgment delivered by the Cape Town High Court last year‚ which declared sections of the Drugs and Drug Trafficking Act unconstitutional.

The judgment paved the way for adults to cultivate dagga for personal consumption in private dwellings and gave parliament 24 months to correct the defects.

According to the judgment‚ adults can use this defence if they are found in possession of dagga while parliament remedies the legislation.

However‚ the prosecution appealed against the ruling and it is pending before the Constitutional Court.

In his judgment in Austin and Clarke’s case‚ Judge Murray Lowe said other divisions of the high court had stayed prosecution in similar circumstances and “it would be wasteful of costs affecting the public purse‚ and contrary to the interests of justice were the prosecution to proceed in these matters pending the outcome of the Constitutional Court”.

“[Austin and Clarke] state that they have been smoking marijuana for many years without harm‚ sometimes eating same for medical reasons and as part of their spiritual belief and practices‚” the judgment reads.

“In the circumstances of the matter I am persuaded that‚ notwithstanding the opposition of [the director of public prosecutions]‚ a stay of proceedings in one form or another is justified.”

But Austin and Clarke’s shield from prosecution might yet go up in smoke.

Lowe ordered them to bring an application in the high court challenging the constitutionality of the sections of legislation around possession of magic mushrooms within 60 days‚ failing which they will be prosecuted.