Fromer IFP (Inkatha Freedom Party) MP, Dr. Mario Oriani-Ambrosini, who succumbed to stage-four lung cancer pleaded with parliament and president Zuma to look into the legalization of dagga (marijuana, cannabis) for medical use. He started off by saying “People are dying of bad policies and bad laws, we can change.” He then went further to say that it would be a crime against humanity to continue the prohibition of dagga . The human rights question of medical marijuana can be extended to the use of dagga in religious practices, as it too would be a crime against humanity to prohibit followers of a religion to practice that religion.
Current and historic legal stance
In 1908 the first laws governing the use of dagga in South Africa were imposed and the trading in dagga was banned. In 1923 South Africa wrote to the Council of the League of Nations reminding them that they should include Indian hemp (dagga) on their list of opium and other dangerous drugs and in 1925 dagga was prohibited worldwide. In 1971 the Abuse of Dependence-producing Substances and Rehabilitation Centres Act 41 of 1971 was introduced and amended in 1992 to the current legislation . Under South African law dagga is an undesirable dependence-producing substance and a schedule 2 substance, same as heroine and tik. It is prohibited by the Drugs and Drug Trafficking Act 140 of 1992 (hereinafter referred to as “the Drugs Act”) and caries heavy penalties. In 1996 section 21(10)(a)(i) of the Drugs Act was constitutionally challenged.
The Constitution of the Republic of South Africa of 1996 guarantees freedom of religion and the right to culture , and in the case of Prince v President of the Law Society of the Cape of Good Hope formed the foundation of the argument put to the Constitutional Court. The appellant, Mr. Garreth Prince, a dedicated Rastafarian wanted to become an attorney. After disclosing his former criminal convictions for the possession of dagga, under the Drugs Act and his intent to continue using the plant to the law society, they declined to register him as an attorney. He approached the courts. First the High court and then the Supreme Court of Appeal dismissed his constitutional challenge. The Constitutional Court was approached.
The court looked at Rastafarianism, dagga and Rastafarianism, the medical benefits of dagga and the relevant law. The onus never rested on the court to make a decision regarding the legality of dagga but rather if the laws governing dagga was inconsistent with the constitution regarding Rastafarians . After evaluating sections 15 and 31 of the Constitution the court found that there was an infringement on Prince’s right to freedom of religion. Both the minister of health and the attorney general conceded that the infringement took place . They in turn argued that the infringement was justified under section 36 of the Constitution . The onus now rested on the court to determine if the infringement was reasonable and justified. After carefully evaluating all the facts the court ruled that in order to protect the general population a provision for Rastafarians would not be made and that the limitation of rights were justified and reasonable. In the Prince case one of the justifications to the limitation to the freedom of religion for the prohibition of dagga was to uphold international law. Van der Schyff warns and reminds us that it is important to uphold international law but that the Constitution is always superior to those laws . In S v Bhulwana and S v Gwadiso the court held that the presumption of guilt in trade of dagga if caught with 115g of dagga or more was inconsistent with s 33 (1) of the Interim Constitution of 1993, presumption of innocence until proven guilty.
Recent local and foreign developments
In recent years a lot of groundbreaking scientific research has been conducted on the medical benefits and risks associated with dagga. Many countries have legalized the use of dagga for medical purposes, 22 US states and the district of Colombia , most of Europe, Israel and most of South America. Dr. Mario Oriani-Ambrosini introduced our own Medical Innovation Bill to parliament after his plea, which was later published in the government gazette . The purpose of the bill is to make provisions for medical innovation concerning dagga and to legalize the use of the plant for medical, commercial and industrial use.
Other countries legalized or decriminalized the use of dagga for recreational use. In 2013 Uruguay and the US states of Washington and Colorado legalized marijuana for personal use. Portugal decriminalized the use of all drugs more than a decade ago and the results have been greater than expected. The crime rate and the use of drugs amongst the youth dropped dramatically.
Another constitutional challenge is however underway. Julian Stobbs and his life partner Myrtle Clark, collectively known as the Dagga Couple, are challenging the government of South Africa to legalize the use, possession and dealing of dagga . The basis for their argument is that the laws governing dagga is outdated and originates from racist colonial laws. They also argue that the laws have no scientific merit . In their video, Dagga: The truth , they explored the origin and early use of dagga in South Africa, not only the use amongst the indigenous population but also the use of dagga among the Voortrekkers and early Afrikaans community as a home remedy. It soon becomes clear from the video that the use of dagga amongst the slaves in the sugarcane plantations did not suite the early colonials. As they believed it slowed down the workforce, made them lazy and insane. They also bring up an important point, that if the sale and trade in the more dangerous substances, tobacco and alcohol, is regulated by law then so too can the sale and trade in dagga. Dagga has to date not been the cause of a single death worldwide, while the annual death toll attributed to tobacco in South Africa in 2010 was 44 000 . Almost half of all motor vehicle accidents are attributed to alcohol . Their case will be heard in the Constitutional Court in March 2015.
To express my feelings towards the subject I leave you with some wise words from former US President Jimmy Carter:
“Penalties against possession of a drug should not be more damaging to an individual than the use of the drug itself; and where they are, they should be changed. Nowhere is this more clear than in the laws against possession of marijuana ”
Written by Theodore Krouse, 2014/10/15
2: Abuse of Dependence-producing Substances and Rehabilitation Centres Act 41 of 1971
4: Drugs and Drug Trafficking Act 140 of 1992
5: The Constitution of the Republic of South Africa of 1996
6: s 15 of the Constitution of the Republic of South Africa of 1996.
7: s 31 of the Constitution of the Republic of South Africa of 1996
8: Prince v President of the Law Society of the Cape of Good Hope (CCT36/00)  ZACC 1; 2002 (2) SA 794; 2002 (3) BCLR 231 (25 January 2002)
9: Drugs and Drug Trafficking Act 140 of 1992
10: Prince v President of the Law Society of the Cape of Good Hope (CCT36/00)  ZACC 1; 2002 (2) SA 794; 2002 (3) BCLR 231 (25 January 2002) at 1
11: Prince v President of the Law Society of the Cape of Good Hope at 15-24
12: Prince v President of the Law Society of the Cape of Good Hope at 109
13: s 15 s31 of the Constitution of the Republic of South Africa of 1996
14: Prince v President of the Law Society of the Cape of Good Hope at 28
15: s 36 of the Constitution of the Republic of South Africa of 1996
16: Prince v President of the Law Society of the Cape of Good Hope
17: The Constitution of the Republic of South Africa of 1996
18: Van der Schyff 2003 Tydskrif vir die Suid-Afrikaanse reg133
19: Burchell Principles of criminal law 125
21: Staatskoerant 18 Februarie 2014
28: Perkel 2005 South African psychiatry review26