‘Privacy’ for dagga users

2017-04-11 06:01
Dagga Party leader Jeremy Acton and Rastafarian Garreth Prince celebrate after the Western Cape High Court made its landmark ruling last week.PHOTO: Supplied

Dagga Party leader Jeremy Acton and Rastafarian Garreth Prince celebrate after the Western Cape High Court made its landmark ruling last week.PHOTO: Supplied

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THE landmark Western Cape High Court’s order regarding the private use of dagga applies only to home use and cultivation, cautioned Dagga Party leader Jeremy Acton after the ruling in Cape Town last week.

“It’s about privacy in your own home, it’s not about on the streets,” said Acton while a jubilant crowd of Rastafarians swirled around him following a judgment that gave users some wiggle room relating to criminal charges for private possession or use of the plant.

With a police van parked nearby, Acton said that laws for use outside the home would still have to be determined in a parliamentary process, but yesterday’s judgment was welcomed as a start of the political processes needed for change.

Acton, who is leader of the Dagga Party, and Rastafarian Garreth Prince had argued their own case in the court in December in front of judges Dennis Davis, Nolwazi Boqwana and Vincent Saldhanha.

Saldhanha had coincidentally represented Prince after his arrest for dagga while still a law student in 1989.

“What this means is that South Africans can use cannabis in their homes,” said Prince.

He explained that the police can still go into a home and arrest a person for cannabis, but the judges ruled that the right to privacy can be used as a defence when charged.

“As to whether they would be able to give your cannabis back, that is something that still needs to be ironed out,” he said.

The intricate order starts by declaring sections of the Drugs and Drug Trafficking Act and sections of the Medicines and Related Substances Control Act unconstitutional and invalid.

In the lead-up to the judgment, Davis said it was perfectly clear to the court that the right to privacy was central to the application by Prince and Acton, which was heard in December.

He said once the court had decided that privacy was the main issue, they had to examine the limitations on this right, as set out in section 36 of the Constitution. Their job was to decide whether the state had justified its limitations on the right to use dagga.

“Because we found that the legislation breaches the right to privacy, and on the available evidence presented by the state, it [the limitations] cannot be justified in terms of section 36,” said Davis.

Davis said it was not up to the judges to decide whether or not there were social problems linked to drugs, or that drug-related problems should be ignored.

The issue for them was that the legislation was too broad.

The judges felt that it was not up to them, but Parliament to decide how to correct this.

Their ruling suspends the order of invalidity of the relevant sections of law for two years, to give MPs time to fix the problem themselves.

A suspension of invalidity for two years effectively means that the old laws stand until two years is up. Then the judges have to decide what to do about people arrested while the laws are being amended.

For this, the judges decided that the right to use, grow or possess dagga in the privacy of one’s home can be used as a “defence to a charge”.

The order does not specify whether the defence must be presented in court, or at the point of arrest, saying only “a charge”.

— News24.

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