Don’t Light Up The Dagga Yet

Various news outlets are making the claim that, thanks to the Western Cape High Court, Dagga is legal now. It’s not! At least not yet. South Africa’s legal system includes a complexity known as the separation of powers and it is this that effectively prohibits the Courts from changing legislative laws. If the Courts were able to make law and then judge people on it, they’d wield too much power and make the legislature significantly more redundant.

In his judgement, Davis, yes the one of eNCA fame, even elaborates on this and indicates that this is not a matter of legalising dagga but simply saying that the current method of criminalising it is not in line with the Constitution.

The reasoning is that, while the Court still seems to acknowledge drugs as a social ill, with specific reference to dagga, there are less intrusive ways of dealing with it…as the Court says, there are “less restrictive means”. To this end, the Court declared that the provisions criminalizing dagga are over-reaching. It therefore declared the law criminalising dagga to be invalid but suspended the declaration of invalidity for 2 years. While this seems complex, it’s not. It’s merely the Court giving the Legislature time to make right the wrongs that it’s just pointed out.

The arguments presented to the court were risky yet compelling. In a comparative manner it was argued that, “The law does not proscribe alcohol, tobacco, doughnut eating, horse-riding, … rugby and soccer because all of the above can be harmful to humans”. With further evidence and a even some concessions from the National Prosecuting Authority, Davis concluded, “I find it practical and objectively possible for legislation to distinguish the use of cannabis and the possession, purchase and possession of cannabis for personal use consumption from other uses.”

So…can the court legalise weed? No! Does this mean that I can legally smoke now? No! So what must happen from here?

If we expect the best, at some point in the designated 24 months, the legislature (that’s those 400 okes and okettes you vote for every 5 years) will get together and develop a legal framework under which you can have your spliff…hopefully it will be finalised on 20 April 2018 and we can have a great party.

Unfortunately, that’s not the only possibility. Generally, when, as in this case, there’s a declaration of unconstitutionality by the High Court, the Constitutional Court needs to certify that decision. The Constitutional Court can potentially look at this case and say something along the lines of “wohlolo. soz. high court wrong. DENIED!” (if only Constitutional Court judgements were so easy to read).

Another alternative is that the Legislature may come up with a different way to prosecute and deal with dagga. They could remove the law as indicated by the Court but simply replace it with another one that makes dagga illegal in a “less restrictive manner”.

A significant reprieve though is that in addition to the suspended order of invalidity, the Court also declared that, in the meantime, “personal consumption” in a “private dwelling” is a valid defense to a dagga charge. This means that you can still be charged and/or arrested but will have a stronger hand in Court. It still doesn’t mean that smoking is completely legal.

It’s important for the public to know this because while prosecutions for dagga have been put on halt, for the time being, smoking dagga recreationally is still criminal and will remain so until the legislature changes the law. This case was merely a step towards legalisation. It is possibly the most important and cumbersome step but it is certainly not the final one.

Simply because it looks likely that we’ll be totally legal soon, we’re still not legal now so don’t put a photo of yourself on Facebook claiming to be smoking your first legal spliff…you may regret that in 2 years’ time if things don’t go as we expect them…and this is South Africa…we’ve learned to expect the unexpected!