Judge Dennis Davis, for a full bench, found that the criminalisation of marijuana within the home unjustifiably limited the right to privacy.
He concluded that the state had failed to show that criminal prohibition
was the least restrictive way to deal with the problems caused by
marijuana. The order was suspended for 24 months to allow
parliament to amend the relevant laws.
South Africa is among many countries facing challenges to their drug control policies, particularly around marijuana, known locally as dagga. The Medicines Control Council is developing guidelines for production for medicinal use and the country’s highest drug policy guardian has recommended broader decriminalisation.
The key battle ground, however, is in the courts.
A new trial is due to start in which the state is likely to expend considerable energy trying to prove that marijuana use is seriously harmful. If this is indeed the substance of its argument, it should lose. The point isn’t whether marijuana causes harm, but whether criminal prohibition is the best way to address those harms.
South African Police Service statistics suggest that most anti-drug activity is against those in possession of small quantities. These are people who are unlikely to play any strategic role in drug supply, and whose deterrence or removal from the market has little prospect of having any impact overall.
The legal wrangle to date
The first recent knock to prohibition came in 2016 with a ruling by the Constitutional Court. The court held that the constitutional right to privacy was unjustly violated by parts of the country’s drugs and drug trafficking act that allowed a law enforcement officer to stop and search any person, property or vehicle on the grounds of “reasonable suspicion” of violation of the Act. The ruling meant that police would no longer be able to enter and search private properties without a warrant.
A bigger challenge came from the Western Cape High Court. This case was brought inter alia by Gareth Prince. Prince lost a case in the Constitutional Court in 2002 that sought exemption from the laws on the basis of his Rastafari religion.
Prince’s more recent case sought not just an exemption based on religious freedom, but to challenge marijuana prohibition overall on various grounds – including that it was based on an irrational distinction from alcohol. Ras Prince brought the case with Jeremy Acton, leader of the Dagga Party.
Judge Dennis Davis, for a full bench, found that the criminalisation of marijuana within the home unjustifiably limited the right to privacy. He concluded that the state had failed to show that criminal prohibition was the least restrictive way to deal with the problems caused by marijuana. The order was suspended for 24 months to allow parliament to amend the relevant laws.
The state quickly indicated its intention to appeal and to continue enforcement without any change. But it seems that several people charged with marijuana crimes have received stays of prosecution pending the outcome of the legal process.
A separate case is about to kick off in Pretoria. Myrtle Clarke and Julian Stobbs, known as the “The Dagga Couple”, have turned their arrest for possession into a decriminalisation crusade. Their team has raised funds for local and international expert witnesses to help them make their argument that the criminal prohibition of marijuana is irrational, wasteful, and unjustifiably infringes numerous constitutional rights.
This is the first time that the issues will have the chance to be properly aired in court.
It’s long overdue.
Pattern of arrests
According to the South African Police Service’s annual report, there were 259,165 recorded counts of illegal drug possession or dealing in 2015/16. These charges resulted in 253,735 arrests, accounting for almost a sixth of all arrests.
Most drug arrests are made through stop-and-search or roadblock operations. National figures aren’t available but those from two of the nine provinces suggest that a vanishingly small proportion of drug charges (2%-4%) are for dealing as opposed to possession of drugs. Very few drug arrests are made at ports of entry, through special operations, or through the Serious Organised Crime Investigation Units.
Between 65% and 70% of drug charges are for possession of marijuana. The presumption is that possession of over 115 grams (about 4 ounces) constitutes dealing. This means that every year police seek out and charge about one in every 300 people for possession of an amount of marijuana that weighs no more than an apple.
It isn’t clear whether criminal prohibition is an effective way to dissuade or help drug users. Evidence from other countries suggests that, generally, the greater the perception of risk, the lower the prevalence of use.
But the strength of this effect is debatable to say the least, and it remains far from clear whether a liberalisation in marijuana policy results in a significant increase in its use or in associated harms. The effects of the recent wave of marijuana policy changes in various US states, for example, are still being closely observed and debated.
For people who have highly problematic drug use patterns, there is even less consensus that the threat or reality of imprisonment is an appropriate or effective tool for either dissuading or helping them. Other approaches may well do significantly better.
There are many models of decriminalisation. Policies that work in the Netherlands or Colorado might not work in a developing country like South Africa given differences in drug use, drug market and price structures, regulatory capacity and political climates.
The goal must be to find a broadly acceptable balance of a complex range of harms, benefits, and rights in the context of limited resources.
For example, South Africa needs to consider what impact decriminalisation would have on small-scale, informal farmers who depend on the crop for their livelihood. Legalising marijuana could mean that they are forced out of the market by large agribusinesses, or falling prices.
On the other hand, prohibition arguably does more to harm the current producers and distributors than consumers.
The right balance won’t be found if marijuana is simply cast as a devastating alien threat to the nation’s children and communities. Instead it needs to be understood as a socially and economically ingrained pastime for which there is clearly considerable popular demand.
Harm is not enough
Justifying the criminal prohibition of marijuana is not a matter of proving that it causes harm. Evidence of major harm has not been enough to lead to the criminal prohibition of, for example, alcohol, nicotine, sugar, firearms and unprotected sex.
The case that needs to be made is whether criminal prohibition is effective, proportionate, and the minimally invasive way to address those harms. The state will struggle to prove this. An increasing number of countries have concluded that it is not.