On September 18, the Constitutional Court ruled that the cultivation and use of dagga is legal if it is for personal use and if used in private. It confirmed an earlier decision taken in April last year by the Western Cape High Court, which declared parts of the Drugs and Drug Trafficking Act and the Medicines and Related Substances Control Act inconsistent with the constitutional right to privacy.
This means I could still get arrested for smoking weed on Melville’s 7th Street or anywhere else that is not private. Even so, supporters of Gareth Prince, the main respondent in the case, gathered outside the Constitutional Court to celebrate the ruling by lighting up in a public space, which is still considered a crime.
The ruling doesn't mention what amount of dagga qualified as "personal use" and what amount qualified as "dealing". These details, the Concourt ruled, should be determined by the legislature, which has two years to amend the relevant laws. In that transitional period, the police have discretion to determine what falls under “personal use” and what qualified as “dealing” or “selling”.
Another added complication is that the Concourt did not define “in private”. Constitutional law professor at the University of Cape Town Pierre de Vos explained: “We do not know what ‘in private’ means as there is no legal definition. It is far broader than the ‘privacy of your own home’. An educated guess would be that 'in private' would be any place to which the general public do not have general access to. So your house, your garden, your pants pockets, your car, your tent, would be private. A restaurant would not.”
This police discretion to determine what is private and what amount of dagga should be considered for personal use, is problematic, said Myrtle Clarke, one half of the dagga couple. Clarke and her partner Julian Stobbs became the dagga couple after they were arrested for possession of dagga in 2010.
“We thought we were being robbed,” Stobbs said during a talk the couple gave in Cape Town. When they heard men shouting and knocking, Stobbs went to open the door to face the barrels of six guns that were trained on him.
“Where is the drug lab?” the armed police officers yelled at their Lanseria home, north of Joburg.
Instead of awaiting the outcome of the criminal case, they sued seven government departments for a host of human rights violations. Dubbed the "trial of the plant", the case came before the high court in Pretoria last year and is expected to resume soon.
Linked to this case is an initiative, set up by the dagga couple, “Join the Q”. People who have been arrested for cannabis can join the queue of arrestees who have applied for a stay of prosecution, pending the outcome of the trial of the plant. Currently, there are 104 in the queue.
While the new Concourt judgment should lead to a decrease in dagga-related arrests, Clarke is wary of the powers that still rest with the police. “That police directive is a double-edged sword, because the police still have discretion to decide who they can arrest.”
This grey area means the police are still arresting people for small amounts of cannabis.
Jeremy Acton, co-complainant with Prince and founder of the Dagga Party, has also kept track of arrests since the ruling. According to Acton, two men were recently arrested in their homes in Cape Town for possession of 1kg of cannabis.
On October 11, Erik Vorster was arrested in his home at Wilderness, in the Western Cape. Vorster was growing 16 plants in his garden and had a further 177g of dry cannabis in his possession. The police charged him with dealing.
A case in point is Charmaine Wendy Sinclair’s arrest on September 21, three days after the ruling. The police deemed the 470g in her possession an illegal amount.
The Hawks stopped her close to the toll gate at Port Shepstone in Kwa- Zulu-Natal. Sinclair was with her daughters and a friend. The friend had about 1kg of cannabis on her.
Sinclair intended to produce cannabis oil with the marijuana, to help her daughter - who has type-1 diabetes, lupus and a condition that affects her oesophagus - manage the symptoms of her ailments.
The Hawks took the women and girls to Port Shepstone police station, where Sinclair was charged with possession; her friend with dealing; and, to Sinclair’s astonishment, her 21-year-old daughter with dealing as well. “All they found on her was a crusher,” Sinclair explained.
Hawks spokesperson Hangwani Mulaudzi did not respond to most questions sent to him. He confirmed the sequence of events but claimed Sinclair was arrested for dealing, not possession. Sinclair’s charge sheet reflects the charge of possession of cannabis.
Aidan Berry was arrested after the Western Cape High Court judgment but before the Concourt affirmation of that decision.
He was unpleasantly surprised when four different police units swooped on his premises on March 14.
“I started growing medicinal marijuana after my father died from cancer. I sent a sample of my plants to Durban to get it tested for medicinal use. The Hawks intercepted my shipment,” Berry explained.
“A policeman I know later told me that my arrest was a case of mistaken identity: they thought I was part of the notorious Berry gang in Bethelsdorp, led by the two Berry brothers, who died in a shootout in 2016.”
Berry and his fiancée, who had a nervous breakdown following the arrest, are expected to appear before the magistrate tomorrow.
National police spokesperson Vishnu Naidoo failed to respond, despite several emails, phone calls and messages, to further questions around this case, including the claim that there was a case of mistaken identity or why police were sent to arrest someone who was clearly growing for private use.
The Concourt ruled that their decision would not have retrospective effect, but what about Berry, who was arrested between the two decisions?
De Vos said: “The act was committed when it was still a crime, so it can be prosecuted. But it would not be in the interest of justice for the National Prosecuting Authority to pursue such cases, and it would be bizarre.”
* Ruth Hopkins works for the Wits Justice Project.