Over the last few months we've been seeing a lot of people saying things like “cannabis is legal in the Western Cape” or “cannabis is only legal in Cape Town”.
We feel it necessary to present the facts and set the record straight about the March (2017) Western Cape High Court judgment by Judge Dennis Davis, Judge Vincent Saldanha and Judge Nolwazi Boqwana.
First of all Cannabis is still illegal in the Western Cape and the other eight provinces of South Africa. It is not presently legal in any jurisdiction in South Africa (without being in possession of a permit to cultivate it for research purposes granted by the Department of Health). Only one such permit currently exists (that the public is aware of) and is held by Dr Thandeka Kunene of House of Hemp.
The Davis judgment gave the South African government a period of two years/24 months (from the date the judgment was set down) to bring the existing laws concerning cannabis in line with provisions in the South African constitution.
It is very important that you understand that if you grow or possess cannabis on your property you can still legally be raided and arrested by the police, BUT you are within your rights to ask to see a signed search warrant before allowing anyone to set foot onto your property.
If you go through the process of being arrested and are required to appear in court on charges for possession on your private property you do have the right to use the Davis judgment as a defence, which in most cases should result in your charges being dropped/dismissed or thrown out. You must be sure to claim your right to privacy in your own home as per the Davis judgment when you speak to the magistrate.
NB: in the rare event that your charges are not thrown out you will still have the option to apply for a stay of prosecution in which case you should contact either the Dagga Party of South Africa OR Fields of Green for All (NPO). Both can easily be found on Facebook or Twitter.
The Davis judgment is a High Court judgment, which technically means that it can be used as a defence by anyone appearing in a magistrates court (which is lower than a High Court) in any municipality or metro in any province of South Africa. Bear in mind that the judgment can only be used as a defence in cases where you were found to be in possession of cannabis on your private property or in your residence. The judgement cannot be used as a defence for possession in public places e.g. on the street or in your car when being searched at a roadblock. It also does not apply if you have been arrested for dealing or supplying cannabis.
Please also be aware that the government has lodged an appeal against the Davis judgment, which is scheduled to be heard on the 7th of November 2017 at the Supreme Court of Appeal (SCA) in Bloemfontein.