Judge Dennis Davis’ May 31 2017 dagga judgement immediately expresses that in a constitutional democracy it’s necessary to separate disputes that should be addressed in court versus in the legislature and/or executive of government.
Heard in the Western Cape High Court, Case 8760/2013 found Gareth Prince, Jonathan Rubin, Jeremy Acton, Ras Wentzel and Caro Hennegin opposing the Minister Health, Minister Police, National Director Prosecutions and other arms of government.
Judge Davis said the case questioned the extent of the validity of laws that prohibited the use of cannabis and the possession and cultivation thereof for personal consumption.
The applicants brought separate cases but Judge Davis noted that the legislative intent was clear. The applicants sought the “invalidity of references to cannabis in s21 of the Drugs Act…” and “s40(1)(h) of the Criminal Procedure Act”, and an adjustment of the Medicines & Related Substances Control Act.
In essence, “the applicants seek relief that… this court should make an order which would operate during the period of suspension preventing the arrest, detention and prosecution for use of, possession, cultivation and the transportation of small amounts of cannabis intended for personal use and a stay of all pending prosecutions and release from custody of persons who are in detention pursuant to such proceedings.”
RIGHT TO PRIVACY
Judge Davis saw that the heart of the case was the right to privacy which is guaranteed under Section 14 of the Constitution. “It follows from the animating idea of privacy that a right to make intimate decisions and to have one’s personal autonomy protected is central to individual identity who is entitled to make decisions about these concerns without undue influence from the State… the question that must be asked in this case is whether the legislative framework places limitations on privacy.”
THE DAGGA JUDGEMENT
“This Court must invoke its powers under s172(1)(b) of the Constitution to order a suspension of the declarations of invalidity for a realistic period to ensure Parliament may correct the defect. A period of 24 months from date of judgement would be appropriate.
The order also makes clear 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 not constitute undue harm.
In the interim period, it is necessary to provide that prosecutions that fall within legal provision declared to be unconstitutional should be stayed…
It is declared that until Parliament has made the amendments or the period of suspension has expired, it will be deemed to be a defence to a charge under a provision of this order that the possession, or cultivation of a cannabis in a private dwelling is for the personal consumption of the adult accused.”
Download ‘THE DAGGA JUDGEMENT’ (66 pages). It’s interesting and useful.