KNYSNA NEWS - Dagga, weed, marijuana, cannabis... Call it what you will – in South Africa it is illegal.
Growers, smokers and people who use it in one form or another – from juicing to making edibles to extracting the oil – generally find this fact outrageous.
How can you make something that is natural illegal, they want to know.
And most recently on social media, with the listeriosis outbreak said to have originated in a processed meat factory, cannabis proponents have also referred to the plant as being safer than polony.
As promised, the second in a series of articles regarding cannabis comes to readers this week, this one specifically relating to the legalities around the plant and what you can do when you as a private user are caught by police.
Read a previous article here: The other side of a cannabis bust
The facts so far
On 31 March last year the Western Cape High Court (WCHC) found that prohibiting the cultivation and use of cannabis is unconstitutional and ruled it should be legal to cultivate and use in your private home.
It said that current laws were unjust, limiting people’s rights to privacy, and that private use should be allowed as long as it does not “constitute undue harm”.
The court then set aside 24 months from the date of the judgement “in order to allow Parliament to correct the defects” set out in the judgement.
As part of the ruling, provisions of the Drugs and Trafficking Act 140 of 1992 and the Medicines and Related Substances Act 101 of 1965 were also declared inconsistent with the Constitution and invalid, to the extent that these provisions limit or prohibit the use of cannabis by in adult in a private dwelling.
Furthermore, said the judgement, the ruling may be used as a defence when a person is charged for either the possession or cultivation of cannabis for personal use in a private dwelling – again, only for the 24 month period.
The ruling did not give specifics though, which still left many questions up in the air.
The police may also still enter your home on suspicion of possession, but as stated above the ruling may be used as a defence.
State appeals decision
In November 2017, the State appealed the WCHC ruling, stating it did not uphold the values of the Constitution.
The State claimed that South Africa is not an individualistic society, and that the ruling was not in line with either the Constitution or the values of our society.
It added that cannabis is more harmful than other recreational substances like tobacco or alcohol.
Legal opinion
Local attorney Zwaai Kruger sheds more light on the current situation.
“No law has been passed as yet and no indication of a date for the completion of the ruling has been set. Cannabis therefore still remains illegal,” he says.
For clarity Kruger, who says he has no qualms with any adult using cannabis himself, adds that the State's leave to appeal has not invalidated or suspended the WCHC ruling.
Depending on the outcome of the appeal, “it will either be accepted into law or shot down", he says.
The lawyer believes prosecuting cannabis users for possession of small quantities is a waste of resources and of the police’s time.
“Have you ever seen a proper Rastafarian causing any trouble? They’re peace-loving, so why arrest them?”
How to deal with arrest
Kruger says there are different routes that people could follow once arrested for possession.
“You will be arrested and booked, but sometimes it may depend on the arresting officer. Some of them are very nice and will try to assist people to get the matter over and done with as soon as possible.”
He adds that a person is usually released after a case has been opened and the paperwork completed.
What could happen next (if charged with a small quantity), he says, is that you could be issued with a SAP 496 – a standing order to appear in court on a specified date.
You will also be given the option to sign a J534, or admission of guilt and pay a fine, in which case, Kruger says, you will not have to go to court – but you will immediately have a criminal record.
“I would advise against this option. A criminal record may only be expunged after 10 years,” he says.
On the court date, you will have two options, Kruger says: to apply for a stay of prosecution or to plead not-guilty and continue with the court case.
“When applying for a stay of prosecution you will then use the WCHC ruling, in which case your hearing will be moved to a date after the final WCHC ruling has taken effect, or has been successfully appealed.
"There is also a chance that the case against you might be dropped, but I must reiterate that each case is judged on its own merits,” he says.
Kruger believes a stay of prosecution is not worth it as it is a long and complicated procedure. “Rather plead not guilty because then the responsibility lies with the State to prove you guilty – just get it over with,” he says, adding that having an attorney by your side is always a good idea.
The police's view on the subject, the laws they use to charge persons caught with cannabis, and the procedure that follows after an arrest are covered in a separate article.
What happens elsewhere in the world?
- In the US, eight states have legalised the possession of cannabis in small quantities, for personal use. They are Alaska, California, Colorado, Washington, Maine, Massachusetts, Nevada and Oregon.
- In Canada, although possession, use, cultivation and transportation of cannabis is illegal, the Canadian government has announced that it intends to enact legislation regarding legal possession of small quantities.
- In Uruguay, cannabis is legal for recreational use. There, the state controls the entire industry.
- Countries that have decriminalised the possession of cannabis in small quantities for personal use include certain territories in Australia, Austria, Chile, the Czech Republic, Estonia, Jamaica, Portugal, Spain, Switzerland and another 13 states in the USA (Connecticut, Delaware, Illinois, Maryland, Minnesota, Mississippi, Missouri, New York, North Carolina, Ohio, Rhode Island and Vermont). – Information sourced from WCHC 31-03-17 ruling
Need to know more?
An internet search will tell you exactly where to go. Some well-known sites currently operating in SA are Dagga Couple, Fields of Green for All, The Green Network, BailMeOut and the Dagga Party of South Africa.
Read a related article: Police thank paper for publishing dagga bust
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