The saga over the legalisation of dagga in SA is set to drag on for a while. The state has appealed the Cape Town High Court ruling that the cultivation and private use of dagga should be legalised.
Papers were filed by the National Director of Public Prosecutions and several other government departments this week. The state said it did not want any of the current legislation around the use of dagga to be changed or amended. It also claimed that the court erred in "characterising and formulating the issues before it".
"The High Court ignored the case presented by the respondents and concentrated on the right to privacy only‚ despite the right not being pertinently raised by the respondents‚" it said.
On March 31 a full bench found that the criminalisation of dagga was unconstitutional. The case was brought to court by Rastafarian activist Gareth Prince, and the Dagga Party.
In its judgment the court found that the ban on the personal use of dagga by adults in their homes was an infringement of the constitutional right to privacy. The court gave Parliament 24 months to amend the Drugs and Trafficking Act and the Medicines and Related Substance Control Act and bring it in line with the Constitution.
Dagga Party leader Jeremy Acton said the appeal by the state was expected and that it would give the pro-dagga lobbyists an opportunity to appeal for further reforms in the legislation: "We knew they would appeal. This gives us a right to cross appeal with them having played their hand first‚ and we can then ask for more in our cross appeal.
Acton says the "main concern is that this appeal is going to give the police more carte blanche [to arrest people] in the interim".
Constitutional law expert and Professor Emeritus at Unisa, Shadrack Gutto‚ said that while the court order stood‚ the use of dagga remained illegal until it is ratified by the Constitutional Court and put into law by Parliament: "It has left the space open until there is a ruling ... It is very difficult to say that people can continue to use dagga. It remains illegal for the moment."
Gutto said an urgent application to the Constitutional Court to clarify the matter is required before Parliament can deal with it: "The legislation adopted by Parliament can then go for review by the Constitutional Court to see if it holds up."
TMG Digital
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