Top judges sift weed from chaff
● Constitutional court to rule on private dagga use
Dagga users in Port Elizabeth were urged last night to “puff their very last illegal joint” ahead of Tuesday’s landmark Constitutional Court judgment on the private use of dagga.
The message was delivered by SA’s “dagga couple” at the Growth Guru in Newton Park, where they gave a strong presentation on their proposed legal regulation for dagga, just hours ahead of the widely anticipated judgment to be delivered at 10am in Johannesburg.
Jules Stobbs, 59, and Myrtle Clarke‚ 51, have spent more than seven years at the forefront of the fight to legalise the use of dagga for adults.
The judgment, which comes amid a number of other legal bids for legalisation, will potentially affect hundreds of thousands of dagga users and SA’s estimated 900,000 dagga growers.
In addition, according to the couple – who will fly to Johannesburg for the judgment – the outcome of 104 other and current criminal cases involving dagga may also hinge on the ruling.
They are expecting a positive court outcome.
“The legalisation of dagga in South Africa is inevitable,” Stubbs said.
“Of critical importance is the regulatory environment in which this takes place.”
Clarke said: “We certainly do have high expectations for a positive outcome. It is the form of the judgment, such as rulings or stipulations which may accompany a positive judgment, which we are uncertain of.”
She said should the judgment not be positive, there were still a number of other legal avenues in the system which they would fall back on.
While the Constitutional Court may choose not to allow the use of dagga in a private home setting, it could also wait for the lengthy court case in the high court in Pretoria‚ where the couple have asked the court to strike down every law banning the use‚ sale and cultivation of dagga, to conclude.
In March 2017, Western Cape judge Dennis Davies found the ban on using dagga at home breached the constitutional right to privacy.
But he did not legalise the sale of dagga or transporting dagga to a private home.
Rastafarian Garreth Prince and former Dagga Party leader Jeremy Acton brought the case to ask for the home use of dagga to be allowed.
Now‚ the Constitutional Court has to agree with‚ or strike down‚ that decision.
Stobbs and Clarke got involved in the Western Cape case as friends of the court‚ asking it to make a wider decision striking down the laws that ban the sale‚ transport and cultivation of dagga.
In essence‚ they wanted the decision to be more wide-ranging and allow for a greater legalisation of the drug.
Clarke said they did not want a situation where there was a grey area – in which dagga was legal at home but still illegal to buy or transport.
“This is my greatest fear – that we get a wishy-washy decision‚” Clarke said.
The “dagga couple” have been arguing in a separate case since 2013 that the Pretoria high court must strike down all laws that ban the sale‚ growing and use of dagga and send them back to parliament to be rewritten.
Earlier this year‚ the Constitutional Court asked all the parties to explain why it should not put its entire decision on hold until the end of the Pretoria case.
Stobbs’ and Clarke’s lawyer‚ Paul-Michael Keichel‚ said: “In summary‚ we argued that it would be unfair to Prince and Acton‚ who brought the case‚ to have them wait for the outcome of our trial.
“We also argued it would be unfair to burden the dagga couple with the significant costs and hassle of running the remainder of a full trial.”
Asked if he thought the decision could be delayed until their already five-year trial concluded‚ Keichel said: “We hope for the best.
“I certainly hope that the Constitutional Court agrees
that it is time to cease discriminating against and imprisoning people whose choices create less harm to themselves and to society than do tobacco and alcohol.”
He is hopeful the court will not only approve the decision to smoke dagga at home but broaden the decision to strike down the ban on its sale.
However‚ even if this happened‚ parliament would still need to get involved to make new laws.
But Prince and Acton argued in court that users should‚ in the meantime‚ be immune to prosecution of dagga-related charges provided it was for personal use at home.
“So‚ there may yet be a long road ahead before we finally know what we can and cannot do‚” Keichel said.
Clarke said she did not mind if the Constitutional Court chose not to make a decision on Tuesday and that they got sent back to the Pretoria high court to finish their case.
“This is one of the better options. All the evidence about dagga use will be ventilated‚” she said.
In the Western Cape court matter‚ advocate Thomas Bokaba‚ acting for the state‚ argued that smoking dagga increased crime‚ affected the poor and vulnerable the most‚ and caused mental illness and psychosis and should remain criminalised.
He also argued it was a gateway drug introducing communities to much harder and more addictive drugs such as tik.