Cape Town - A Rastafarian lawyer is challenging the legislation that outlaws dagga.
In an application lodged at the Western Cape High Court last month, Garreth Prince asks for certain sections of the Drugs and Drugs Trafficking Act, the Medicines and Related Substances Act and the Criminal Procedure Act to be declared invalid.
He is also asking for (among other things):
* A moratorium on all arrests for the use, possession, cultivation or transportation of small amounts of dagga - for personal use - should Parliament be ordered to “correct” the impugned provisions.
* If such a moratorium is not granted, for adult Rastafarians and “other cannabis users” to be exempt from prosecution during the period of suspension.
* That the Director of Public Prosecutions (DPP) hold back on all pending dagga-related criminal proceedings during the suspension period.
* Correctional Services to assist all prisoners jailed for the possession, cultivation, transportation and dealing in small amounts of cannabis in securing their release.
Prince himself faces criminal charges in the Khayelitsha Regional Court for dagga possession, dealing and cultivation. His wife, Juanita Adams, and daughter, Samantha Adams, are his co-accused in the matter.
The police raided the family’s Glencairn home in June last year and found several dagga plants and 500g of dried dagga.
But the high court has granted a stay of the pending criminal proceedings against them while he launches his constitutional challenge.
In an affidavit submitted to the court, Prince questioned to what extent the government could dictate what people ate, drank and smoked. Privacy concerns, he said, dictated that people should have some autonomy, exempt from outside intervention.
“In respect of fatty foods, alcohol consumption, tobacco smoking or prescription drug taking, our government imposes only regulative measures outside of the criminal penal code. Consumers are thus free to consume these harmful substances free from fear of imprisonment,” he wrote.
He contended that penalising dagga users “for engaging in a practice that is no worse than tobacco smoking” was profoundly disrespectful and violated equality. A blanket prohibition of dagga placed Rastafarians, in particular, in a position where they had to make a “constitutionally intolerable choice between obedience of the law and observance of our way of life”.
Prince believed that the prohibition branded all Rastafarians as criminals, saying they were exposed to arrest and stigmatisation for no justifiable reason. The laws against dagga, he argued, did not draw a meaningful distinction between dagga and hard drugs.
He also questioned the belief that dagga was bad for people’s health, saying it was not based on scientific fact and that the government could not point to one instance where dagga had directly caused the death of a person.
This, he argued, could not be said for legal substances such as alcohol, tobacco and prescription drugs.
At least two of the five respondents in the matter - the Minister of Justice and Constitutional Development and the DPP - have formally noted their intention to oppose Prince’s application.
Prince has a legal qualification but is not an admitted attorney. He has previous dagga-related convictions and this prevented him from adding his name to the roll of admitted attorneys from the Cape Law Society in 2002.