Guest Column

Dagga in the highest court in the land

2017-11-06 15:45
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Cannabis debate: 'SA likely to prioritise health and human rights' - lawyer

2017-08-15 11:57

While a High Court bid to legalise marijuana continues in Pretoria, several international experts weighed in on the topic during the recent Drug Policy Week conference in Cape Town. Watch. WATCH

Jules Stobbs

On Valentine's Day 2010, Myrtle and I appeared in the Krugersdorp Magistrate's Court charged with possession and dealing in drugs. In the months awaiting our first court appearance, we had written an affidavit claiming our constitutional rights to use cannabis as responsible adults in the privacy of our home. We charged seven State departments with enacting an unlawful law.

The 1992 Drugs and Drug Trafficking Act in its present form pertaining to cannabis, is virtually a cut and paste from the 1971 'weed law'; a law that saw over 70 000 African males arrested and imprisoned in its first year.

These laws have been tweaked to fall in line with international conventions over the years since 1961, and remain the single most destructive piece of legislation in the land, based on absolutely no science whatsoever. Unrealistic. irrational legislation from a dim and distant past.

In the Krugersdorp Magistrate's Court, the elderly magistrate looked up at us over his round horn-rimmed glasses and said: "You do know you are opening a can of worms?"

At the same time, a case was developing in the Western Cape. Leader of the Dagga Party Jeremy Acton was fighting a R50 fine for a stop of weed in his local constituency. He took his grievances to the Western Cape High Court at roughly the same time our founding affidavit was being lodged with the North Gauteng High Court. (NGHC)

Ras Gareth Prince, the only South African to have taken the 1992 Act to the Constitutional Court, where he was narrowly defeated in 2000, teamed up with Jeremy. Over a period of years, they added more aggrieved South Africans to the list of plaintiffs sickened by the way State had treated them for having a relationship with a plant.

The culmination of their challenge was heard at the end of 2016 in the Western Cape High Court (WCHC). Judge Dennis Davis handed down what has been a hotly debated 'privacy' ruling. He found that the arrest and detention of someone for using and growing cannabis in their home was unconstitutional. The cops couldn’t bash down your door and trash your stash.

The State were given two years in which to change the relevant parts of the law pertaining to cannabis.

'Weed is legal' was the breakfast click bait. Then the questions started to fill our inbox. Is it only Cape Town? What happens if you’re in your vehicle? If you can smoke it, where do you get it?

What about work? What if you live in a caravan, or a first floor apartment with no garden?

It was like legal but not legal. Illegal anywhere but your home, and if you grew it yourself.

Surely that’s not legal? What about the health benefits or the industrial uses. What about hemp? Can we all grow hemp now?

The judgment seemed to create more questions than answers but the Plaintiffs had actually managed overturn the 'last apartheid law'. Laymen, representing themselves in a South African High Court had convinced a presiding judge that parts of the 1992 Drugs and Drug Trafficking Act pertaining to cannabis dagga were indeed unconstitutional.

The State appealed the judgment almost immediately which came as a surprise to some. They had little or no effective argument in the High Court. Would could possibly change in a higher Appeals Court?

Months later, convinced we could fill the gaps in the evidence that wasn’t ventilated in the WCHC, Myrtle and I walked into what we dubbed the 'Trial Of The Plant' (TOTP) in the NGHC. Nineteen court days to present the definitive argument for and against the legalised regulation of dagga, live streamed to the world.

The State had one thing to achieve and only one. They had to prove that their 100-year-old method of controlling and reducing the sale and consumption of dagga by arresting users and putting them in cages was working.

Was the use and sale of dagga decreasing by locking peaceful citizens in holding cells and denying them bail because they had no resources? Was their obsession with criminalising generations of young dagga users really helping society? Was sentencing a breadwinner to jail for peddling a couple of bankies in his hood helping the family environment?

The State and co-defendants, Doctors For Life, did an exemplary job of grinding our definitive trial to a standstill with days of tedious circular cross examination and last minute file submissions.

It could be seen by all who watched expert witness Prof David Nutt on the live feed for 42 hours that that was the sole intention of the defendants. Stall the trial, bankrupt us, and be in no hurry to set a new date.

They achieved that in part, but not before Nutt could put on the court record the relative harms of alcohol, tobacco and cannabis. That cannabis is not a killer; that death from overdose is clinically impossible; that it has important therapeutic pharmacology – and alcohol and tobacco doesn’t.

I'll never forget the pressure of those weeks in the NGHC. The media presence, the defence attorney’s demeanours, the stuffy, wood panelled low ceilinged court, the contrived anti dagga campaigning in the street outside with T-shirts paid for by local government, the tactics, psychology, delays, and a house full of crew and supporters for a month.

We were having our day in court.

We didn't really seem to get anywhere with our evidence. However, we received a huge amount of international coverage from cannabis networks worldwide. It was a busy and exciting time.

South African cannabis activism is coming from a place of human rights, sovereignty and cognitive liberty. It simply hasn’t been done like this before, anywhere in the world.

Cannabis users were the plaintiffs. The government were the defendants and the world was watching it all unfold on YouTube.

When we heard a date had been set in the Constitutional Court to hear the State’s appeal to the WCHC judgment, our legal team advised us to attempt to join the hearing as co-plaintiffs. A move that if successful would mean Advocate Don Mahon and our legal team could introduce our 'Trial Of The Plant' arguments to assist the court in making their judgment.

All our evidence concerning hemp and medicine that seemed to somehow get ignored or circumvented by the WCHC, could now be considered.

Over the last couple of weeks, the pertinent documents have been received by the Constitutional Court from our incredible legal team. Doctors for Life, the irritating thorns in our side for the last six years, have joined as Amicus Curiae. The Griqua Nation, a people marginalised by history are mobilising for the hearing. King Adam Kok V, their present leader has personally filed an application, as have representatives of the San Nation. Traditional healers and teachers of indigenous knowledge systems want their arguments heard as to why dagga should be re-legalised.

After all, it is the San people who are responsible for introducing the original use of the word 'dacha', eons ago.

On Tuesday 7th November, the Rastafari United Front will head a procession from Joubert Park in Johannesburg through the streets of one of South Africa’s most densely populated areas to Constitutional Hill and the bastion of the South Africa’s judiciary, the Constitutional Court.

Every one of those marchers has been locked up in a cage, to a greater or lesser degree, by the authorities for their use of their religious sacrament. The Rastafari are the most persecuted cannabis users in South Africa. Outside the court, they will be joined by traditional healers, cannabis patients and responsible adult users of this plant who will be supporting the plaintiffs on this monumental day.

We all want our voices heard. It’s time.

It is a one day hearing, as far as we can tell. There is no more evidence to lead. All parties have submitted their arguments and the bench of 11 judges will direct questions to both the plaintiffs and the defence, individually on the day. The truth shall be heard and we hope the highest court in the land will judge in our favour; a judgment we hope to have by the end of the 1st quarter of 2018.

It is unlikely that any of these proceedings will have any bearing on my (and Myrtle’s) criminal charges. 'The Trial of the Plant' will continue in the NGHC sometime in the second half of 2018.

After all, Prof Nutt’s evidence is yet to be completed. What this Constitutional hearing may well achieve on the 7th November will be to tick a lot of boxes on the road to legalisation. A few less matters to argue in our proceedings, and less for the State to stall us on, perhaps.

Either way, with this exceptionally diverse melting pot of interests, histories and arguments coming together in this manner, in this venue and joining the fray, it’s been a really unique and exciting seven-year journey opening up this can of worms.

Aluta continua.

Jules Stobbs

The 'Dagga Couple'

Disclaimer: News24 encourages freedom of speech and the expression of diverse views. The views of columnists published on News24 are therefore their own and do not necessarily represent the views of News24.

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