DR MARY SEES THE GREY IN GREEN
The many ‘grey areas’ in the quest to decriminalise cannabis use in our country need to be carefully examined
DR MARY Nel, a law lecturer at the University of Stellenbosch, loves nothing more than examining the “grey areas” between state and non-state policing, and the impact of the criminal justice system on marginalised communities.
At the recent Cannabis Conference at Emperor’s Palace, she said the clock was ticking on Parliament’s need to adjust cannabis legislation.
The Constitutional Court ruled in September that an individual could grow and consume cannabis in their own private space and gave Parliament 24 months to adjust legislation. Already 10 months have elapsed since the ruling, and as yet, Parliament has not even released a discussion paper and invited comment from interested parties, as this is a contentious subject.
Hopefully, by the time the next Cannabis Conference takes place in Cape Town on November 7 and 8, there would at least have been a discussion paper on which the public can comment.
“It is up to Parliament to ‘cure the constitutional defect’ within the allocated 24 months. If it does not, the Constitutional Court ‘reading-in’ becomes a final part of legislation. There are, however, many potential pitfalls and problems with ‘reading-in’ solution. Hopefully, Parliament will act soon and provide clarity,” Nel said.
One of the potential pitfalls is obtaining seed to start the cultivation for your own personal use. If you have seed, then you must have been growing it illegally previously, but, if you buy seed from somebody else, then you are dealing in a cannabis product. Go figure.
Nel also highlighted the potential pitfall of determining how much can be said to be “personal consumption” with respect to possession or cultivation of cannabis. If you live in a rural community in northern Kwazulu-natal, where cannabis has been grown for generations, if you help grow cannabis for your community of one hundred people and each uses one kilogramme per month, then is a field yielding one kilogramme per person for a year or 1 200kg is that “personal consumption” or “growing for dealing”?
“The Constitutional Court did not specify the amount permissible for personal consumption. It left it up to Parliament to decide,” Nel said.
She also questioned the wide police discretion granted to decide whether there is a “reasonable suspicion” that an offence in respect of the impugned provisions has been committed.
“Can a person give the police a ‘satisfactory account’ of possession? What may be ‘satisfactory’ to a police person in Gauteng or the Western Cape, may not be satisfactory to a police person in KZN,” Nel added.
“If a person is charged with possession or dealing in cannabis, the State has the onus to prove beyond reasonable doubt that the purpose of the possession/cultivation was not personal consumption. The police officer may question the person, but should also have regard to all the relevant circumstances. This reading-in may be criticised on the basis that it does not provide either a police officer or anyone with certainty as to when the possession of cannabis can be said to have crossed the line of personal use or consumption and will, therefore, have become prohibited,” Nel noted.
She said there must be a clear enough indication of what the prohibited conduct is. This is so that citizens can know in advance what they may and may not do – the so-called “principle of fair warning”.
Paul-michael Keichel from Schindlers Attorneys asked in his presentation what valid framework could be utilised to monitor and control the cannabis industry.
He pointed out that the Constitutional Court judgement had been made in response to the “dagga couple”, Myrtle Clarke and Julian Stobbs, saying that their rights in terms of Section 36 of the Constitution had been violated as it was neither “reasonable” nor “justifiable” that they could not grow cannabis in their own garden nor consume cannabis in their own home.
He said Section 9 required the State to act in a rational, non-arbitrary, non-hypocritical manner, and in his opinion, the current legislation on cannabis cultivation and consumption did not meet this constitutional requirement as it was not based on scientific evidence, gave too much discretion to arresting police so was arbitrary in its application and was hypocritical in that other drugs such as alcohol and magic mushrooms did not have the same restrictions placed on them as cannabis.
Shaun Shelly from SA Drug Policy said in his presentation “Reaping Rewards, Reducing Risks”, that international drug policy developments could be usefully applied to the South African situation.
Research on US incarceration policy showed that an urban African American arrested for drug possession was two or three times more likely to move on to stronger drugs than a peer who was not arrested.
The Global Commission on Drug Policy released a report on June 25, 2019, which questioned the classification of psychoactive substances. In Shelly’s view, “Who is suffering the harms of cannabis?” is the wrong question. It should instead be phrased as “What is causing the harm, and why do we tolerate it?”
“People who use drugs are judged on what drugs, how and where they use them, the source, the colour of the user’s skin, the size of their bank balance and privilege. Based on these factors, consequences range from admiration to death. For rich men drinking single-malt whisky in clubs: they receive social status, admiration and inclusion. For sex-workers injecting heroin on the street: they face arrest, jail, prohibition-related increased risks leading to HIV and death.
“The reason cannabis is being decriminalised and regulated is because we are at a stage where the status quo will be maintained,” he said.