Dagga case heats up

2016-12-14 18:34
Garreth Prince, an applicant to have dagga decriminalised (Jenni Evans, News24)

Garreth Prince, an applicant to have dagga decriminalised (Jenni Evans, News24)

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Cape Town - The government has a duty to protect citizens from the harm caused by drugs, according to the lawyer for the State as the landmark application to have cannabis decriminalised continues in the Western Cape High Court.

"We submit that the State has an interest... in protecting its citizens, including children, against harm caused by narcotics, including cannabis," said State advocate Bogoshi Bokaba SC.

Bokaba said the Constitutional Court had already found against one of the applicants, Rastafarian Garreth Prince, who had wanted to be allowed to use the herb legally for religious reasons.

That court accepted that the purpose of legislation prohibiting its use and distribution is to protect the general public against harm, submitted Bokaba.

In its judgment, the only one so far on the topic, the Constitutional Court said the prohibition was part of an attempt to curb world-wide distribution of cannabis.

That judgment noted South Africa was one of the world's biggest suppliers of cannabis, but it also had obligations to uphold international treaties preventing its distribution.

Prohibition 'unconstitutional'

Bokaba said the Constitutional Court case only dealt with Prince's religious rights to use cannabis.

"Here it is worse, because the applicants want the whole legislation repealed. They are not asking for exception, no," said Bokaba.

Prince and Dagga Party leader Jeremy Acton, on behalf themselves and 18 other plaintiffs who face prosecution and criminal records for dagga-related charges, want the court to declare some sections of the Criminal Prohibition of Dagga Act (sections 4b and 5c), read with certain sections of Part III of Schedule 2 of the Drugs and Drug Trafficking Act, unconstitutional.

They are also challenging parts of the Medicines and Related Substances Act.

They believe they should be allowed to choose to use the herb and its extracts for a range of applications including social, medicinal, spiritual and commercial.

They submit that cannabis is the least harmful compared with tobacco and alcohol, which are legal, and that adults should be able to use it, with some regulatory provisos.

Attack on case's presentation

These included drug test if necessary in the same way that drunk drivers are tested, for example.

The ministries of health, police, trade and industry, and justice and constitutional development, and the director of public prosecutions oppose the application.

Judge Vincent Saldanha, who briefly represented Prince almost 20 years ago when he was a human rights lawyer with the Legal Resources Centre, Judge Dennis Davis and former commercial lawyer Judge Nolwazi Boqwana, are hearing the case.

Bokaba attempted an attack on the way Prince and Acton, who are representing themselves, have presented their case, and said they had not formulated their arguments properly on the rights they claim are being infringed.

He said they had simply "tabulated" them without providing any motivation.

"The applicants have chosen to cite every conceivable right under the sun," said Bokaba.

But Davis said courts should not set the bar so high, demanding that cases be so forensic that it becomes difficult to challenge anything in court, especially for people like Acton and Prince who are representing themselves.

The judges also rounded on the State for apparently not filing papers to dispute the volumes of scientific evidence provided by Acton and Prince to substantiate their argument, or to question the credentials of the experts cited by the two.

Discretion, diversion programmes

Davis said there is a growing worldwide trend towards considering whether cannabis should be legalised, and the State needs to provide evidence on why it does not agree.

Davis said one of the few affidavits filed by the State was by a general practitioner who "conflated morality and legality".

"It is what it is," said Bokaba, after a lengthy tense exchange.

Bokaba said the State has to deal with so many drugs, including nyaope, cocaine and tik, that it cannot lift the prohibition on cannabis.

He noted that Parliament is currently working on the Medical Innovations Bill, which is expected to increase the number of cannabis compound extracts used medicinally, but there is no regulation on legalised cannabis use.

But Davis carried on sparring with him, asking who was being harmed by cannabis use, and wanted to know why it was not illegal for a pregnant woman to drink alcohol if it is considered harmful.

He noted that according to submissions made to the court, the director of public prosecutions itself is already using its discretion over what amount of dagga possession warrants prosecution, and is using diversion programmes in some courts, instead of prosecution.

The case continues.

Read more on:    jeremy acton  |  garreth prince  |  cape town  |  narcotics

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