Michael McMurray
THE Constitutional Court has been asked to rule on a controversial dagga law which automatically turns dope smokers into dope dealers if they’re found with more than a handful of the weed.
At stake is the validity of the so-called “suspicion” or “presumption” clause in the Drug and Drug Trafficking Act of 1992.
Article 21 (1)(a) of the Act states that persons caught with more than 115g of dagga in their possession will be suspected of dealing in the drug, an offence that carries far more serious penalties than mere possession.
National director of Lawyers for Human Rights Jody Kollapen believes the “suspicion” clause is unconstitutional. “It forces the court to presume that the accused is guilty of
“The onus rests on the accused to prove that the dagga was intended solely for his/her own use and not for distribution. It’s unconstitutional, as the law states that a person is innocent until proven guilty.”
Judge Justice Marais from the Cape Supreme Court was faced with this dilemma last year in the Bhulwana case. The court had proved beyond doubt that Bhulwana was guilty of possessing just under 400g of dagga, an offence which carries a prison sentence not exceeding five years, but they couldn’t prove that he had intended to deal in the
Taking into account that the accused had only been a few hundred grams over the required “dealing” limit, the judge decided to refer the case to the Constitutional Court for further deliberation. The matter is expected to come before the court next month.
Kollapen agrees with the decision, saying the situation should be placed in the proper context. “Should the same (dealing) criteria apply when judging a few hundred grams compared to hundreds of bags of dagga?” — DigiNews