Dagga ruling leaves authorities in a haze

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Cape Town – There is uncertainty among various government institutions around the Western Cape High Court’s ruling which allows for the possession, cultivation and use of dagga at home. Social Development spokesperson Lumka Oliphant said Minister Bathabile Dlamini was not aware of the court’s decision and refused to say whether the department would appeal the landmark ruling. “I don’t communicate with the minister on every matter,” she said. Oliphant referred the queries to the provincial department. Sihle Ngobese, spokesperson for Social Development MEC Albert Fritz, said the provincial department does not intend to appeal the court’s decision but that they are against drug abuse. “The ruling is something we feel should be brought to Parliament,” Ngobese said.

Provincial police spokesperson Lieutenant-Colonel André Traut, said the “office is not in a position to respond to your questions at this premature stage”.

National police communications officer, Vish Naidoo, said he too had no answers to the court’s ruling.

The National Prosecuting Authority’s national spokesperson, Advocate Luvuyo Mfaku, said the NPA was not in a position to comment at this stage and referred the matter to the Department of Justice.

A list of questions sent to department’s Mthunzi Mhaga went unanswered.

William Booth, CLS Criminal Law Committee chairman, said the ruling “allows people not only to use (dagga) for medicinal purposes, but recreational”.

The Constitutional Court has to confirm the Western Cape High Court ruling and only then will Parliament act on rectifying legislation or introducing a new bill.

“The legislation is still there, so technically in terms of the Drugs and Drug Trafficking Act at the present moment, it’s illegal to possess cannabis. The court’s decision is saying the legislature must change the legislation to bring the law in line with this decision.

“We don’t know yet whether anybody is going to appeal this particular decision and also we do not know at the moment what the attitude is of other high courts where these other applications are pending.”

Booth said there are a number of similar dagga applications in other high courts across the country.

“We don’t know yet whether the NPA will appeal the decision or whether any of the other organisations who were part of the proceedings will appeal the ruling. It could still happen,” said Booth.

“Another high court is not bound by this decision but will take it into consideration. This decision will play a significant role in any other decision in a high court.

“The matter might end up in the Supreme Court of Appeal and if their decision is on these lines, then every high court is bound by the decision by the SCA.”

Booth said people who are being charged for possession of cannabis will have their cases stayed. “People being charged for cannabis possession or cultivation, their cases must be stayed or, in other words, put on hold or withdrawn at this stage, awaiting the decision to change the legislation, and then withdrawn pending the change in the legislation.

“If the law does change, then they can’t be prosecuted. But you can’t prosecute people where the high court has said the cases have been stayed, that would be illegal.”

The legalisation of dagga could cause wider social consequences if the law is passed, warned David Bayever, deputy chairman of the Central Drug Authority, an advisory body in terms of the prevention of and treatment for substance abuse, which is mandated to assist in the fight against substance abuse in the country. Bayever questioned if underage alcohol consumption is not controlled, how would dagga use be controlled.

“The evidence we have in our country is that we cannot control underage drinking. How are we ever going to control underage smoking, and what is actually meant by the privacy of a home?”

“The effect the ruling could have on both the user and the harms caused to the user and the evidence also show that not only is harm caused to the user but also to society as a whole.

“There are a number of issues around the ruling we need to look at. The judge has completely ignored the scientific evidence and has used constitutionality as the main basis for the ruling,” Bayever said.

Weekend Argus