Written by: Daniel Jake, May 26 2017
There is currently a court case happening in the High Court to legalise dagga on constitutional grounds.
Understand the background of the case here
Follow the case live in parliament here
When it comes to South Africa’s legal framework and its relationship to marijuana, exciting developments have been taking place as of late. The nation has been lit up with news stories documenting court cases and policy changes that mark a shift towards a more progressive stance on dagga use. These developments have also sparked activity and excitement from civil society: marches, debates, radio interviews and increased online dialogue.
Given all of the recent developments and debate, what does this mean for the everyday South African? Has our country finally legalised weed? Are there some categories of use that are more acceptable than others? Recreational? Medicinal? Religious? Home use?
The short answer is that weed is still illegal in South Africa. But there’s a lot more to consider and major progress is being made in court and in parliament.
Progress is quickly being made on both the recreational and medical fronts. Although things have been gaining momentum since 2010, the movement towards a more liberal stance on the green in South Africa has accelerated rapidly since 2014. Such developments include a High Court ruling in favour of home-based cannabis users; an imminent trial, spearheaded by the renowned Dagga Couple, in which the plaintiffs will make an argument as to the reasons for the legalization of marijuana; and a recent policy shift in favour of decriminalization on the part of the Central Drug Authority (CDA).
In this article we will navigate the aforementioned developments one-by-one, exploring the central arguments, main roleplayers and significant implications for South African society. Comparing and reviewing all of these developments, we hope to assist in fostering a nuanced understanding of the law’s relationship to marijuana in South Africa; and a better understanding of the prospects for having the herb fully legalized in the future.
Read on to find out about the medical innovation bill and what these means for medicinal marijuana use:
Medicinal Marijuana: The Medical Innovation Bill
Since 2014, the legality of marijuana for medicinal use has been a hot topic for discussion amongst policy makers, medical professionals and patients in need – categories of people which are not necessarily mutually exclusive.
Former MP of Inkhata Freedom Party (IFP) Dr Mario Orianai-Ambrosini was already suffering from Stage 4 Lung Cancer when he introduced the Medical Innovation Bill. The Bill sought to legalize marijuana use for those who may benefit therapeutically, by reducing it from a schedule 7 to a schedule 6 substance. Theoretically, this would make it possible for doctors to prescribe cannabis as a treatment for certain conditions. Tragically, however, Ambrosini passed away six months after the introduction of this bill.
Nonetheless, Ambrosini’s efforts were not in vain and the IFP have subsequently taken up the Medical Innovation Bill. Current IFP MP Nared Singh stated that the political party would carry forward Ambrosini’s goal of making marijuana accessible to those in need. However, whilst Ambrosini sought to bring about the legalization of marijuana use more generally, the IFP chose to restrict their efforts by focussing only on legalizing medicinal marijuana. This was said to be a strategic decision, maximizing the party’s chances of realizing Ambrosini’s goal.
In November 2016, the IFP received a response from the South African Medicines Control Council (MCC). The latter is the organization which governs the manufacture, sale, distribution and marketing of drugs and medications, in accordance with the Medicines and Related Substances Act. The following words, published in the MCC’s memo, summarize the council’s position on the matter: “In recent years, a small but growing body of evidence has emerged suggesting that cannabis may have medicinal value for some patients in conditions where other treatments have failed.”
Subsequently, in March 2017, the MCC published an important document: draft guidelines for the production, production and manufacturing of medicinal marijuana in South Africa. Specifically, this document seeks to establish the rules and restrictions which will apply in cases where permits are sought out. Thus, the guidelines were largely designed to direct the efforts of medical and agricultural institutions, with the MCC emphasizing that strict regulations would be put in place in order to regulate access to medical marijuana.
The draft states that:
“applicants may seek to grow, extract and test cannabis; and to manufacture medicines containing cannabinoids. In order to be granted a permit to perform these functions, applicants require permission not only from the MCC but also from the Director General of Health. In following this process, applicants must also undergo a stringent suitability test which comprehensively assesses all aspects of an applicant’s intentions and prior conduct. It is also deemed necessary for agricultural applicants to demonstrate adequate security on their farms and to ensure that all of the product can be accounted for during and following production. Naturally, in accordance with the guidelines and the Medicines and Related Substances Act, patients who are in need of medical marijuana can only access the medication under close supervision by approved medical practitioners.”
These restrictions mean that there is no shortage of red tape to be negotiated by those seeking to apply for permits, purportedly, so as to minimize the risks of abuse. However, whilst the draft represents an historical step in the direction of realizing the use of medicinal marijuana in South Africa, MP Singh has stated that it is unclear how long it will take for the draft documents to become the law. This means that, despite the tentative efforts of the draft guidelines at exploring the conditions whereby medicinal marijuana production might take place in future, permits are not currently being issued and will not begin to be issued until the existing legislative framework is adapted. Specifically, the Medicines and Related Substances Amendment Act of 2015 and the draft guidelines must be officially passed into law.
The Central Drug Authority Adopts a Different Stance
In June 2016, the South African Central Drug Authority (CDA) issued a definitive statement indicating a shift in their position through a call for the decriminalization of marijuana. In accordance with the Prevention of and Treatment for Substance Abuse Act, the CDA is an advisory body for the government, mandated to facilitate the management of substance abuse.
What exactly does decriminalization mean and what was the CDA’s reasoning behind this policy shift? Decriminalization is not the same as legalization: in the case of the former, marijuana would still be considered an illegal substance but those that use it would not be prosecuted as criminals.
The CDA, therefore, have advised that the government shift to a middle-ground approach between criminalization and legalization
The CDA holds that this revision seeks to minimise harm in the case of those who are likely to use marijuana. Professor Dan Stein – CDA head researcher and department head at UCT’s division of psychiatry and mental health – has commented on the matter. Specifically, professor Stein alluded to the glaring absence of any evidence supporting the idea that criminalizing marijuana will decrease its use. Anecdotally, this is clearly evident in the fact that many South Africans use the substance despite its illegal status.
This begs the question: why are South Africans still being criminalized if there is nothing to suggest that this law is in anyway helpful? Decriminalization, on the other hand, would mean that fewer people will end up in jail, thus easing the load on our already overburdened criminal justice system. Furthermore, decriminalization would afford those that are at risk of abusing marijuana greater chances of securing opportunities for employment, education and rehabilitation (when indicated), Arguably, in cases of drug abuse (as distinguished from recreational or medicinal use) the very contextual factors mentioned above – unemployment and a lack of education – serve as risk factors for substance abuse. From this perspective, criminalization is counter-intuitive and this appears to be one of the lines of reasoning underlying the CDA’s recent policy shift.
However, the CDA are not in favour of legalization, again with recourse to the argument that there is simply not enough evidence to suggest that this will not be harmful. In the words of Professor Stein: “what we’re trying to do is take a look at the evidence and take reasonable and balanced way forwards”. The CDA, therefore, have advised that the government shift to a middle-ground approach between criminalization and legalization. That is, decriminalization.
The 2017 Western Cape High Court Ruling
The 31st of March was yet another highly significant day for cannabis rights activists in South Africa. Specifically, an important ruling was passed in court following an application by The Dagga Party, who demanded that the laws prohibiting marijuana use be reassessed. The application was spearheading by Jeremy Acton, head of The Dagga Party; and Rastafarian Gareth Prince. Together, they confidently argued their case in court without formal legal representation. In culminating this legal process, Judge Dennis Davis determined the following: that it is unconstitutional to prevent people from cultivating and using marijuana in the privacy of their own homes. So, what does this mean exactly?
If you are arrested and charged for possession or growing, you can use the ruling as a “defense to a charge” in court
Quite simply: it is still illegal to own or use marijuana. However, the ruling means that South Africans can smoke and grow in the safety of their own homes, with a slightly greater peace of mind that they will not face legal ramifications. Why only a slightly greater peace of mind? As of yet, no laws have been formally changed, because the ruling has yet to be passed through the constitutional court. As such, the old laws will stand for a maximum of two years before they need to be reassessed and amended. Currently, if one is charged for smoking the herb in the privacy of one’s home, one has a right to use their constitutional right to privacy as a defense against the possible charge.
However the police can technically still go into one’s home and arrest one for the use or possession. It just means that if you are arrested and charged for possession or growing, you can use the ruling as a “defense to a charge” in court. Naturally, this pertains only to home use, and is centered around privacy. Smoking in your yard while the world and neighbours can see etc won’t fly.
It’s also important to note that the South African government has announced that it will appeal the country’s recent High Court ruling. So watch this space.
What was the reasoning behind the court’s decision? Quite simply, a person holds a constitutional right to privacy. This right can be curtailed during superseding circumstances, as can other constitutional rights. Previously, a common line of reasoning was that weed is harmful and that therefore the law is justified in prosecuting people for using it, even if this meant that their other constitutional rights might be limited. The recent high court ruling, however, has determined that there is insufficient evidence for the harmfulness of Marijuana to justify bulldozing a person’s right to privacy. Although this turn of events is arguably merely a modest technical one, in the words of Jeremy Acton: “Things are looking very very positive for some kind of change”.
The Trial of the Plant
Meet Myrtle Clarke and her partner Julian Stobbs. Since being arrested for marijuana possession in 2010, the Pretoria duo were branded by the media as “The Dagga Couple”. This label has been reclaimed and used with affection by the couple and those who support them. Since 2010, the couple have been embroiled in a legal battle which started with them seeking to clear their own names and subsequently progressed into a broader fight for the legalisation of dagga nationwide. This is the question which the couple have posed to South Africa’s legislative framework and our society at large: “How come this benign, useful, non toxic, non lethal plant has lead to the persecution of so many people, in so many countries, for so long?”
Since 2010, the couple’s efforts have been gaining momentum and on 31st of July 2017 their case will be presented in the Pretoria High Court. The trial of the plant will last for 19 court days, during which a judge and team of assessors will seek to reach a decision as to whether the prohibition of marijuana is or is not constitutional. Following this, Clarke and Stobbs hope that the matter will be carried forward to the Constitutional Court and in future, even referenced by the International Court of Human Rights so that the dagga plant’s reputation can be cleared in order to avoid repeated trials of a similar nature elsewhere in the world.
What is the difference between the trial of the plant and the aforementioned 2017 Western Cape High Court Ruling? The latter judgement involving Acton and Prince was undoubtedly a significant feather in the cap of South Africa’s cannabis culture. However, there are notable differences which make the trial of the plant broader, more comprehensive and more significant for cannabis rights activists not only in South Africa, but around the world.
Specifically, the trial of the plant adopts a more comprehensive basis for challenging the court on a person’s constitutional right to use marijuana. An extensive body of evidence will be drawn upon in order to demonstrate the importance of marijuana use in the context of health, industry, recreation and culture/religion. Furthermore, an ensemble of hard-hitting local and international expert witnesses – including doctors, pharmacologists, researchers and historians – have been enlisted to testify in support of the legalization of marijuana.
Therefore, the Trial of the Plant goes above and beyond what was achieved in the Western Cape High Court Ruling. This is because the former court ruling left unchallenged the status of marijuana as an illegal substance. In the former ruling, Judge Davis acceded that, although the plant is illegal, people have a right to use it in the privacy of their own homes. If the trial of the plant proceeds as the Dagga Couple hope for, on the other hand, cannabis will no longer be considered to be an illegal substance. In sum, therefore, the trial of the plant, due to begin on the 31st of July, is truly a monumental milestone in the fight for the legalization of marijuana. Be sure to watch this space.
Summing Up: So Where Does this Leave us?
Weed is the most commonly used drug around the world, with approximately 183 million people having used it during a single year, according the United Nations Office on Drugs and Crime. But our readers don’t need a formal statistic to prove that people like cannabis. What is significant and exciting, on the other hand, is the change in public opinion that is taking the world by storm, paralleled by governments and legislative bodies that are increasingly relaxing their restrictions. Is South Africa following suit? As we all know by now, weed is still illegal in South Africa. Nonetheless, according to Dr Farham, acting editor of the South African Medical Journal, cannabis will “almost certainly be legally available in the not-too-distant future”. Therefore, this article, by tracking the important legislative and policy changes that have been occurring in South Africa, suggests the presence of a big green light at the end of the tunnel.