*Note: Although FOR SA is not / has not been involved in this case, the case to a greater or lesser extent touches on religious freedom and is mentioned for that reason.
On 31 March, the Western Cape High Court (per Judge Davis) delivered a controversial judgment that paves the way for the decriminalisation of the private growing and possession of dagga in South Africa.
The applications brought by Gareth Prince and others argued that the criminalisation of dagga use and possession was a violation of the right to equality, dignity and freedom of religion (in as much as the criminalisation of dagga use and possession limited the rights of Rastafari to practice their religion).
In his judgment, Judge Davis referred to the earlier Constitutional Court case of Prince v President of the Cape Law Society and Others (2002), in which the same Prince challenged certain provisions of the Drugs and Drugs Trafficking Act on the basis that these provisions violated his rights, as a Rastafarian, to use and possess as dagga for bona fide religious purposes. In that case, the Constitutional Court decided that the provisions of the Drugs Act were in fact a limitation of his religious freedom, but that the limitation was nonetheless justifiable under s 36 of the Constitution – due, in part, to the fact that the harm caused by dagga was unknown at the time, but also because a religious exemption would be very difficult to enforce. (The Constitutional Court was however far from unanimous on this point, and split five versus four against Prince’s application).
In the circumstances, Judge Davis found it unnecessary to, in the present case before the Western Cape High Court, again deal with the alleged infringement on the right to religious freedom and instead focused his attention on the alleged infringement on the right to privacy, which was not considered by the Constitutional Court in the earlier Prince case. In this regard, Judge Davis found that the legal prohibition on the private growing and possession of dagga, was a violation of the right to privacy and could not be justified under s 36 of the Constitution.
As a result, Judge Davis ordered Parliament to, within 2 years, amend the Drugs Act accordingly so as to bring it in line with the Constitution. (However, this order of invalidity must first be confirmed by the Constitutional Court.) The order also provides that until Parliament has made the amendments, all prosecutions falling within the invalidated provisions must be suspended.
What is the practical effect of Judge Davis’s judgment? While it paves the way for decriminalisation of private growing and use of dagga, ultimately this will only be a reality once Parliament has changed the law. In the meanwhile, the order creates a defence for persons charged with a crime under the invalid sections (namely that the growing or possession of dagga, was for personal consumption). It is important to understand that the order does not apply to charges of possession in public or distribution, which remains illegal.
To read the full judgment, see here – https://www.saflii.org/za/cases/ZAWCHC/2017/30.pdf
*Note: We have on good authority that the State attorney will be appealing the judgment. The police has also confirmed the authenticity of an internal circular confirming that, given this appeal, the interim relief granted by the court will not be enforcable and that the enforcement of the drug law on dagga will continue without any change.
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