The path to the legalisation of marijuana in South Africa

20 Nov 2017

Let me introduce you to MJ…

For those of you that have not met, MJ is known by many names, such as Callie, reefer, weed, turbo lettuce, ganja, skunk, grass, pot, dagga, marijuana, cannabis and to some “the holy herb”. For the purposes of our article, please feel free to call “her” Mary Jane or MJ for short.

Despite her popularity, MJ has had a rather tainted reputation. Through the 1930s to the 1950s MJ was painted as

“The Devil’s Harvest, an Assassin of Youth that would inflict smokers with a new medical condition called Reefer Madness”, curable only by “severe sobriety”[1].

Banners and posters referred to her as “Public Enemy No 1” and further stated that “woman will do anything for it”.  Her reputation and good standing ruined, she was banned and criminalised world-wide (In South Africa, MJ was made illegal in 1928). Her fate had been sealed for years to come…..

Decades later and still tainted with the reputation of “a girl from the wrong side of the tracks” she is still considered by some as a gateway drug[2] and is classified as a schedule 7 drug[3] which is strictly regulated by the Medicines and Related Substances Act, 1965 (Act 101 of 1965).

An accepted acquaintance with MJ

For medical purposes, marijuana is said to assist in alleviating pain and discomfort and has found application and degrees of success in assisting patients with cancer, epilepsy, multiple sclerosis, glaucoma, migraines, asthma, motor neuron diseases and other neurodegenerative diseases[4].

Over the past few years, and based on the results of scientific research, MJ has been legalised for medicinal use in numerous states within the United States.

In South Africa, as recent as 25 November 2016 in a press release entitled “Medicines Control Council clarifies access to Cannabis for the treatment of medical conditions”, the Chairperson of the Medicines Control Council stated that:

“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.”

and

“Under the Medicines and Related Substances Act, 1965 (Act 101 of 1965), medical practitioners can apply to the Council for permission to access and prescribe unregistered medicines – including cannabis – for their patients in certain exceptional circumstances.  Medicinal cannabis products may thus be made available to specific patients under medical supervision.”[5]

However, not surprisingly, the press release does conclude that “as a controlled substance, it is illegal to cultivate, analyse, research, possess, use, sell or supply cannabis without the necessary authorization from the Department of Health as per the legislative requirements”.

A spiritual connection with Marijuana

Rastafarianism, a religious movement that developed in Jamaica during the 1930s, argues that “the use of ganja is promoted in the Bible, specifically in Genesis 1: 29, Psalms 18:8, and Revelations 22:2. [140]. They portray cannabis as the supreme herb, and regard it as having healing properties. They also eulogise it for inducing feelings of “peace and love” in those taking it, and claim that it cultivates a form of personal introspection that allows the smoker to discover their inner divinity, or “InI consciousness”[6].

The use of marijuana for the Rastafari is therefore considered part of their religion and often central to the practice of Rastafarianism. In fact it is stated that “the principle ritual of Rastafari was the smoking of ganja”. In South Africa and under our Constitution at Section 9 it states that:

“The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth”.

Under Chapter 2, Section 15, it states that:

15. (1) Everyone has the right to freedom of conscience, religion, thought, belief and opinion.”

Under South African Law, that would, on the face of it, therefore protect the practice of Rastafarianism and with it the use of MJ.

However, Chapter 2 may be limited by a law of general application, to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account a series of factors which are set out in s 36 (1) of the Constitution:

“(a) the nature of the right;

(b)  The importance of the purpose of the limitation;

(c)  The nature and extent of the limitation;

(d)  The relation between the limitation and its purpose; and

(e) Less restrictive means to achieve the purpose.”

Despite South Africa’s protection of religious beliefs and customs, the use, possession and distribution of MJ, even under the auspices of religious practice is strictly prohibited.

Get up, Stand Up

On 31 March 2017, Justice Dennis Davis handed down a landmark judgment in the Western Cape High Court that declared certain sections of the Drugs and Drug Trafficking Act, 1992 invalid and unconstitutional[7].

The application regarding the private use of MJ was brought by Gareth Prince, a practicing Rastafarian who, in 2002, was refused admittance as an attorney in the Cape Law Society because he had two criminal convictions for possession of MJ, together with Jeremy Acton (leader of the Dagga Party) and Jonathan Ruben. The three Applicants argued that the criminalisation of MJ use and possession thereof was a violation of the right to equality, dignity and freedom of religion.

Prince had previously approached the Constitutional Court in 2002 where he challenged certain provisions of the Drugs and Drugs Trafficking Act on the basis that these provisions violated his rights, as a Rastafarian, to use and possess marijuana for bona fide religious purposes. In that case, the Constitutional Court decided that the provisions of the Drugs Act were in fact a limitation of his religious freedom, but that the limitation was nonetheless justifiable under s 36 of the Constitution – due, in part, to the fact that the harm caused by dagga was unknown at the time, but also because a religious exemption would be very difficult to enforce.

On 31 March 2017, the question put before the court was whether the government could legitimately regulate and dictate what people could consume privately within their own homes, or whether this regulation was an unjustifiable infringement of the right to privacy and dignity. Davis considered, not only consumption and smoking of dagga within his analysis, but also cultivation of plants on private property for personal use.

In his decision, Davis considered a number of medical studies and reports both for and against the decriminalisation (or not) of MJ. He also considered decisions from other jurisdictions, such as Argentina, Canada and Mexico, which specifically stated that the criminalisation of marijuana was unconstitutional because there were alternative mechanisms that would infringe less on a person’s right to autonomy. Davis also noted the shifts toward legalisation in countries like Uruguay, Australia, Portugal, Switzerland, Spain, the Czech Republic and the United States of America, where, “twenty-nine states and the District of Columbia currently have laws broadly legalizing MJ in some form”[8]., noting specifically at paragraph 84 that “the fact that there has been a significant change in approach by a number of Courts and legislation to what was previously a general prohibition against the consumption of cannabis, even for personal consumption, is significant”.

More notably and of importance at paragraph 90, Davis states as follows “these international developments reflect a clear shift in a consensus in what can be considered to be open and democratic societies, that the criminalisation and possession of cannabis for personal use is no longer effective in preventing harm.  In short, there is no longer a consensus that can regard such limitations as justifiable”.

After considering all the evidence together with the foreign laws and decisions (as set out briefly above), the court found (at paragraph 107-108) that “the blunt instrument of the criminal law as employed in the impugned legislation is disproportionate to the harms that the legislation seeks to curb insofar as the personal use and consumption of cannabis is concerned.  This conclusion is supported by the importance of the core component of the right to privacy and, further, by the cautious approach that must be taken to the evaluation of the criminalisation of cannabis…”

It is important to emphasise that the judgment’s finding and order was limited to the narrow grounds of the right to privacy within private homes and specifically and very importantly “does not extend to children as defined. Children must be protected from any harm caused by exposure to drugs”. At paragraph 130 of Davis’s judgement he specifically sets out that “the relevant provisions are only unconstitutional to the extent that they trench upon the private use and consumption of a quantity of cannabis for personal purposes, which the legislative considers does not constitute undue harm”.

Davis therefore declared certain sections of the Drugs Act and the Medicines and Related Substances Act, invalid — where they prohibit private and personal use of marijuana by stating that “until Parliament has made the amendments contemplated in paragraph 1 or the period of suspension has expired, it will be deemed to be a defence to a charge under a provision as set out in paragraph 1 of this order that the use, possession, purchase or cultivation of cannabis in a private dwelling is for the personal consumption of the adult accused”.

However, Davis suspended this order of invalidity for 24 months to allow Parliament to amend these Acts and bring them in line with the Constitution.

Upon the handing down of the judgement, Jeremy Acton simply said that “It’s about privacy in your own home, it’s not about on the streets“.

What does this judgement mean for friends of Mary Jane?

At this juncture it is extremely important to note that despite the Davis judgement, MJ is still illegal in the Western Cape as well as all of the other eight provinces of South Africa. It is not presently legal in any jurisdiction in South Africa (without being in possession of a permit to cultivate it for research purposes granted by the Department of Health). As is set out in the News24 article entitled “The Davis dagga judgment and what it means for cannabis users”[9] published on 22 August 2017

“The Davis judgment gave the South African government a period of two years/24 months (from the date the judgment was set down) to bring the existing laws concerning cannabis in line with provisions in the South African constitution.

It is very important that you understand that if you grow or possess cannabis on your property you can still legally be raided and arrested by the police, BUT you are within your rights to ask to see a signed search warrant before allowing anyone to set foot onto your property.

If you go through the process of being arrested and are required to appear in court on charges for possession on your private property you do have the right to use the Davis judgment as a defence, which in most cases should result in your charges being dropped/dismissed or thrown out. You must be sure to claim your right to privacy in your own home as per the Davis judgment when you speak to the magistrate.

NB: in the rare event that your charges are not thrown out you will still have the option to apply for a stay of prosecution in which case you should contact either the Dagga Party of South Africa OR Fields of Green for All (NPO). Both can easily be found on Facebook or Twitter.

The important take away from this article is this – the judgment can only be used as a defence in cases where you were found to be in possession of MJ on your private property or in your residence. The judgement cannot be used as a defence for possession in public places e.g. on the street or in your car when being searched at a roadblock or at parties or clubs that are raided. It also does not apply if you have been arrested for dealing or supplying marijuana.

Simply put, if you have invited MJ over for a one-on-one catch up within the privacy of your own home, you will be covered under the auspices of Davis’s judgement.

However, the order will not apply should MJ come over together with half the neighbourhood to start a block party complete with DJ and a keg where she is passed around and distributed to all party goers.

A clean slate

Whilst the Davis judgement does not legalise the use of marijuana, it is the first steps to a clean slate for MJ.

In this light and keeping in mind her positive and proven medicinal effects, the fight for MJ’s reputation continues. The late IFP MP Mario Ambrosini together with Advocate Robin Stransham-Ford presented the Medical Innovation Bill in Parliament during 2014 in an attempt to make it legal for doctors to prescribe alternative medicine, such as medicinal cannabis to people who have been diagnosed with advanced cancer. In 2016, some two years later, the IFP were quoted as stating that the possibility of legalising the use of marijuana for medicinal purposes was a possibility in South Africa and was a giant step forward. [10]

In addition, the so-called media coined “dagga couple” Myrtle Clark and Julian Stobbs launched a case in 2010 in what has been labelled, The trial of the plant, after they were arrested at their home for smoking and growing dagga. Myrtle and Jules are opposing prohibition of MJ in its entirety and propose the absolute legality of the plant, for all its’ uses. Their trial is ongoing.

However, in the interim, the State appealed Judge Davis’ judgement, which appeal was heard in the Constitutional Court in Johannesburg on 07 November 2017. The judgment has been reserved. Fields of Green for ALL (NPC) applied to the Chief Justice of the Republic of South Africa to be admitted as amicus curiae. In addition to this, the Dagga couple and Clifford Thorp, plaintiffs in The Trial of the Plant , have applied for leave to intervene as interested parties in the matter and assist wherever they can.

Whether or not marijuana is legalised or not will be left to the lawyers, scientists and doctors to prove and/or disprove and for Parliament to decide. The one thing that is certain is that for a somewhat unassuming plant, she certainly does stir up a huge amount of controversy. Deserving of her bad reputation or not, the writer hereof does not know.

Whether you know her as the Devils Harvest, Holy Herb or even Wonder Drug, marijuana is not going anywhere. The development of Laws over the next few years is going to be an interesting one indeed.

Bob Marley’s daughter, Cedella, in her interview with HuffPost said this of her father’s relationship with MJ – “Every time he smoked, he was inspired and an open mind was the open door for his creative inspiration. He thought the herb was actually a gift.”[11]

And that seems like a good place to end.[12]

[1] http://flashbak.com/reefer-madness-mid-century-anti-marijuana-propaganda-in-movies-and-books-35558/

[2] https://www.drugabuse.gov/publications/research-reports/marijuana/marijuana-gateway-drug

[3] http://www.mccza.com/documents/5933cac110.14_Media_Release_Cannabis_Nov16_v1.pdf

[4] https://cannasos.com/news/education/cannabis-efficacy-in-treating-motor-neuron-disease; https://www.medicalcannabisclinic.com.au/medicinal-cannabis/als-treatment/

[5] http://www.mccza.com/documents/5933cac110.14_Media_Release_Cannabis_Nov16_v1.pdf

[6] https://en.wikipedia.org/wiki/Rastafari

[7] http://www.saflii.org/za/cases/ZAWCHC/2017/30.html

[8] http://www.governing.com/gov-data/state-marijuana-laws-map-medical-recreational.html

[9] http://www.news24.com/MyNews24/the-davis-dagga-judgment-and-what-it-means-for-cannabis-users-20170822

[10] http://ewn.co.za/2017/02/20/legalise-it-ifp-pushes-for-use-of-medicinal-marijuana

[11] http://www.alternet.org/drugs/bob-marley-revolutionary-message-marijuana

[12] While the writer hereof neither condones nor objects to the use of Mary Jane, the writer is acutely aware of the challenges regarding drug abuse as well as the prevalence of drug usage in South Africa and therefore recognises the absolute need to regulate illicit drug use and trafficking.

See also: Has the use of marijauana been legalised?

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)