Cannabis finally had its day in the Constitutional Court following years of legal battles across the country. It was a day of highs and lows, but mostly lows for the State and Doctors For Life.
The Constitutional Court sat today to either validate or veto the unanimous Cape Town High Court ruling made earlier this year in favor of cannabis legalisation in South Africa. In the groundbreaking High Court ruling, Judge Dennis Davis found that the prohibition of the plant and its use was at the very least an invasion of personal privacy, and therefore infringed on these constitutional protected rights. The court ordered that the South African government formulate a legal framework to accommodate cannabis demand and supply. The ruling was relatively broad though and it was almost certain that the State would object this ruling, eventually escalating the matter to the Constitutional Court.
Significant weight has been added due to the non-profit company Fields of Green For ALL and leaders from the Khoi Khoi, Griqua and Auni nations intervening in support of the case, while Doctor’s For Life had unsurprisingly joined the State in opposition to any form of legalisation or decriminilisation.
Although the Constitutional Court has previously ruled against legalisation, their previous finding was that the parameters of the application sought then were too narrow and restrictive in that it would only really legalise cannabis for use in a traditional use context, primarily for Rastafarians. The scope of the current case before the court is however much wider and is practically a blank cheque for the judges to order whatever legislation they see fit.
The day began with the court asking whether they should proceed to hear the matter now or if it should be postponed until the Dagga Couple case had been concluded in the North Gauteng High Court next year, but all parties agreed to proceed now. The tone was set early on when the Court expressed that it is common knowledge that alcohol is more dangerous than cannabis and that the burden of proof would be on the State to show why use of the plant is therefore prohibited.
Another blow for the State came when they were unable to answer the court’s queries on how they quantified and measured the harms of cannabis when deciding to make it illegal, and being reprimanded for trying to laugh off the question.
Things then got under way for those in favour of legalisation to have their say. Despite some intense questioning from the court, the cases were clearly and comprehensively made. A highlight was Ras Gareth Prince’s moment on the stand. He eloquently described the traumatic and negative economic effects of cannabis prohibition on those who have been arrested and imprisoned, while highlighting the waste of police resources on enforcing this law. Cutting straight to the bone when saying, “The State does not have the right to ruin my life!” while allowing others to drink themselves to death.
A surreal moment followed not long after when Doctors For Life advocate Reg Willis found himself floundering. Having joined the case as friends of the court in order to assist it make an informed verdict, within minutes of taking the stand though it became evident that DFL sought only to dispute the entire matter and criticize the courts for even entertaining the notion of legalising cultivation or use of the plant.
In what was perhaps an unprecedented moment the court instructed the advocate to stop complaining and that he was “whinging and grumbling”. The court then bluntly asked if DFL was there to assist them or not and why they had waited until the last very minute to intervene in a matter that had been in the High Court for years? Adv. Willis could only respond along the lines that they did not know about it and didn’t really know why he was there. This response had a hollow ring and didn’t sit well with the court.
The State advocate also seemed to lose much of his mojo after this moment and didn’t have the exuberant attitude previously seen when giving expert witnesses an intense grilling during The Dagga Couple’s North Gauteng High Court Case earlier this year. If anything, the opposition to legalisation seemed somewhat deflated and didn’t appear to have their hearts in it. That the Medicines Control Council had just the day before announced its guidelines for medical cannabis may have played a part in this waning willingness.
While it could certainly still go either way, there are high hopes that this may herald the end of cannabis prohibition in South Africa. The verdict is expected to be announced by early 2018.