One can grow and consume dagga in South Africa now, but it is still illegal to sell or buy it.
One can grow and consume dagga in South Africa now, but it is still illegal to sell or buy it.
‘Dagga Couple’ Myrtle Clarke and Julian Stobbs, who went to court to have the use of it decriminalised for personal use.
‘Dagga Couple’ Myrtle Clarke and Julian Stobbs, who went to court to have the use of it decriminalised for personal use.
Zaheera Osman, Shaeen Osman and Zay Osman selling Cannabis Energy Drinks during the Cannabis Expo at Time Square Arena.     Bongani Shilubane  African News Agency (ANA)
Zaheera Osman, Shaeen Osman and Zay Osman selling Cannabis Energy Drinks during the Cannabis Expo at Time Square Arena. Bongani Shilubane African News Agency (ANA)
THIS has been the year for cannabis, with a Constitutional Court ruling giving the green light to the green plant with its distinctive leaves, known as marijuana or here in South Africa as dagga, or simply weed.

Since the landmark court ruling decriminalised the private use of dagga by adults, its distinctive aroma can be detected at township gatherings and outside clubbing spots.

In fact, one is hardly in the door when you are approached with, “sister o sorted ka stuff se monate”.

And last week the capital city hosted the nation’s first trade and consumer exhibition dedicated to the cannabis industry, with a range of dagga products on sale.

According to the expo’s director of sales, Sarah Howarth, the change in the law and international regard for the medicinal properties of cannabis mean the industry is exploding worldwide, and South Africa with its favourable growing climate could become a leading cannabis industry marketplace.

All of this is happening, ahead of the 24-month period required for Parliament to amend sections to the Constitution about the personal use of cannabis.

Deputy Chief Justice Raymond Zondo upheld a decision to legalise the cultivation and use of marijuana by individuals at home that was made by the Western Cape High Court last year.

Justice Zondo did not say how much cannabis a person may have or use, and did warn that the drug may not be consumed in public, distributed or sold, or used by minors.

The battle goes back way before Justice Zondo, however. In the capital city Myrtle Clarke and Julian Stobbs, the so-called “Dagga Couple” appeared in the Gauteng High Court, Pretoria.

They were arrested in 2010 for being in possession of dagga and so followed a long fight for the decriminalisation of dagga for personal use.

Dubbed “The Trial of the Plant”, the couple, through their organisation Fields of Green for All, brought in international and local experts to give submissions on the real and perceived dangers of cannabis. They brought nine experts to testify on their behalf on topics concerning dagga, its healing powers, cultural, historical, economic and traditional aspects.

At the same time the court learnt of the harms posed by substances, such as alcohol, which is legal, and much more toxic drugs such cocaine and heroin.

They raised the issue of research into the impact of the legalisation of cannabis in other countries where similar debates took place.

Real progress was seen with the case brought by Rastafarian lawyer and activist Gareth Prince, alongside leader of the “Iqela Lentsango” (Dagga Party) Jeremy Acton.

It was Prince and Acton who convinced Judge Dennis Davis of the Western Cape High Court that sections of the law prohibiting the private consumption of cannabis by adults was constitutionally invalid and unfair.

This was personal for Prince, who since 1998 was fighting the law since the Cape Law Society refused him admission as an attorney because he had a criminal record for possession of dagga.

Several government heavyweights opposed the issue, including the ministers of health, justice and constitutional development, and police, and the national director of public prosecutions.

But even as the case was seen as a “David versus Goliath” one, Judge Davis’s 2017 decision was upheld by the Constitutional Court on September 18. A unanimous decision ruled that the ban on private possession, cultivation and consumption of dagga for own use was indeed constitutionally invalid.

In the judgment, Justice Zondo said the ban infringed on Section 14 of the Constitution - the clause that gives us the right to privacy. He instructed Parliament to make the amendments needed to the drug trafficking and the medicines controls legislation.

But Andrew Lawrie of Schindlers Attorneys says the decision does not give everyone the licence to buy, acquire, use or sell weed where and when they like. In particular, there is no established channel for one to grow and supply to the end user.

What was being dealt with mainly at present is the medicinal aspect of marijuana. However, even that has red tape to contend with.

Before changes, the public can make submissions to Parliament on what the legal recreational trade in cannabis should involve.

“All the judgment does really is to allow one to grow and consume it but the question on where to get it still remains, as it is still illegal to purchase or sell cannabis in SA,” Lawrie said.