Today could be the day smoking dagga in your home becomes legal

Durban's dagga community want the right to grow cannabis. PICTURE: THULI DLAMINI
Durban's dagga community want the right to grow cannabis. PICTURE: THULI DLAMINI

The Constitutional Court could decide on Tuesday whether you can smoke a joint of dagga in your home.

But it may choose not to — and it could wait for the full lengthy court case in the High Court in Pretoria‚ where the so-called dagga couple‚ Jules Stobbs and Myrtle Clarke‚ have asked the court to strike down every law banning the use‚ sale and cultivation of marijuana.

In March last year‚ Western Cape Judge Dennis Davies found the ban on using marijuana at home breached the constitutional right to privacy. But he did not legalise the sale of dagga or transporting dagga to a private home.

Rastafarian Garreth Prince and former Dagga Party leader Jeremy Acton brought the case to ask for the home use of marijuana to be allowed. The pair represented themselves without lawyers.

Now‚ the Constitutional Court has to agree with‚ or strike down‚ that decision.

Stobbs and Clarke got involved in the Western Cape case as friends of the court‚ and asked it to make a wider decision striking down the laws that ban the sale‚ transport and cultivation of dagga. In essence‚ they wanted the decision to be more wide-ranging and allowed for a greater legalisation of the drug.

Clarke said they didn’t want a situation where there was a grey area; where dagga was legal at home but still illegal to buy or transport.

“This is my greatest fear…that we get a wishy-washy decision‚” said Clarke.

The Dagga Couple have been arguing in a separate case since 2013 that the Pretoria High Court must strike down all laws that ban the sale‚ growing and use of dagga and send them back to Parliament to be rewritten.

Earlier this year‚ the Constitutional Court asked all the parties to explain why it should not put its entire decision on hold until the end of the Pretoria case.

Stobbs’ and Clarke’s lawyer‚ Paul-Michael Keichel‚ said: “In summary‚ we argued that it would be unfair to Prince and Acton‚ who brought the case‚ to have them wait for the outcome of our trial.”

He added: “We also argued it would be unfair to burden the Dagga Couple with the significant costs and hassle of running the remainder of a full trial.”

Asked if he thought the decision could be delayed until their already five-year trial concluded‚ Keichel said: “We hope for the best. I certainly hope that the Constitutional Court agrees that it is time to cease discriminating against and imprisoning people whose choices create less harm to themselves and to society than do tobacco and alcohol.”

He is hopeful the court will not only approve the decision to smoke dagga at home but broaden the decision to strike down the ban on its sale.

However‚ even if this happened‚ Parliament would still need to get involved.

If the court finds the ban on smoking dagga at home is unconstitutional‚ Parliament would still be given two years to make new laws regulating its for-home use.

But Prince and Acton argued in court that users should‚ in the meantime‚ be immune to prosecution of cannabis-related charges provided it was for personal use at home.

“So‚ there may yet be a long road ahead before we finally know what we can and cannot do‚” said Keichel.

Clarke said she didn’t mind if the Constitutional Court chose not to make a decision on Tuesday and that they got sent back to the Pretoria High Court to finish their case.

“This is one of the better options. All the evidence about dagga use will be ventilated‚” she said.

In the Western Cape court matter‚ Advocate Thomas Bokaba‚ acting for the State‚ argued smoking dagga increased crime‚ affected the poor and vulnerable the most‚ and caused mental illness and psychosis and should remain criminalised. He also argued it was a gateway drug introducing communities to much harder and more addictive drugs like tik.

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