Why the dagga ruling isn’t a victory for stoners just yet

The Western Cape High Court ruled that sections of the Drug Trafficking Act, as well as the Medical and Related Substances Act must be changed to make provisions for smoking marijuana at home or growing for personal use.

Judge Dennis Davis found that it was an infringement of the constitutional right to privacy to ban the personal use of dagga by adults in their homes. He gave Parliament two years to correct laws relating to dagga use so that the constitutional rights of South African adults to privacy are not infringed upon. But because the judgment relates to constitutional rights, it first needs to be confirmed by the Constitutional Court.

So what does it mean for stoners around the country?

According to Wits law professor Cathi Albertyn, the order is only a referral, so people need to be careful.

“The order says the Constitutional Court should ask Parliament within 24 months to amend legislation to allow for the private use of a quantity of cannabis for private personal purposes,” she said.

The case only concerns the personal consumption of dagga and doesn’t deal with distribution. You can still be arrested for possessing it, but you will be able to raise a defence of privacy in court when the police charge you.

“If the Constitutional Court agrees with the Cape High Court, the situation will be as follows: it will still be a criminal offence to use dagga for your personal use but if you are arrested, it will be a defence to your charge that it was for your personal use so effectively it won’t be a criminal offence,” she said.

According to the Guide To Not Being Arrested, by Myrtle Clarke and Julian Stobbs (or the Dagga Couple), if you do get caught outside home with more than 115g, “or are suspected of being a dealer, there is little chance you will get bail before appearing in court.”

Right now, we’re in a state of constitutional limbo.

According to one of the applicants, Jeremy Acton, the ruling is likely to be confirmed by the Constitutional Court.

“The ruling was a unanimous decision by three judges who criticised the state’s handling of the matter so I do not know on what ground the state would appeal,” he said.

He said he would like to appeal the judgment as it did not go “far enough”. He wants the possession of cannabis to be legalised. 

“The fact that I have been physically abused by police for carrying cannabis on my person … the privacy of my person is just as sacred as the privacy of my home,” he said.

Acton said people who are walking on the street with cannabis were at risk. “This must not result in unwarranted stop and searches when people are actually being peaceful citizens.”

He said the fight must continue.

“This judgment is the starting point on the massive debate, Parliament has two years to change legislation to remove this plant out of the Medicines and Related Substances Act,” he said.

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