Tag Archives: Dagga Rights

Dagga: The next major civil rights movement.

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.

Constitutional developments
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.

Conclusion
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

References:
1: https://www.youtube.com/watch?v=m0W-Q_OHbYk
2: Abuse of Dependence-producing Substances and Rehabilitation Centres Act 41 of 1971
3: https://www.daggacouple.co.za/dagga-the-truth/
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) [2002] 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) [2002] 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
20: http://medicalmarijuana.procon.org/view.resource.php?resourceID=000881
21: Staatskoerant 18 Februarie 2014
22: http://content.time.com/time/health/article/0,8599,1893946,00.html
23: http://www.iol.co.za/news/crime-courts/sa-s-ban-on-dagga-wrong-says-couple-1.1102379#.U2S3WvmSycw
24: https://www.daggacouple.co.za/about/
25: https://www.daggacouple.co.za/dagga-the-truth/
26: https://www.daggacouple.co.za/dagga-the-truth/
27: http://christiandrugsupport.wordpress.com/most-commonly-used-drugs/sa-statistics/
28: Perkel 2005 South African psychiatry review26

Employee ‘Dagga Rights’ – What You Need To Know

Currently there is no dagga test that can determine if a user is under the influence of dagga.

Modern drug tests for dagga can only determine whether you are a user of dagga. There is no reliable scientific way to prove intoxication or determine that you are under the influence of dagga while performing your duties as employee.

Do not consent to drug testing unless your employment contract specifically covers drug testing or your company has a comprehensive Occupational Health policy in place.

If you are a daggafarian, do not despair, all is not lost.

marijuana in the workplace

As a daggafarian, the most likely scenario you will find yourself in is a disciplinary hearing. They will have to determine if you are addicted or is it a case of misconduct. If they find you are “addicted”, they will have to offer rehabilitation support and if your rehabilitation is a success your case will be dismissed and you will remain employed if however they find you are not an addict the hearing will continue on the basis of misconduct, especially so when dagga is found on you.

Make sure that you seek legal representation for when the matter is brought before the CCMA arbitrator.

Your best counter argument

You must argue that the drug test does not prove intoxication. The test implicating you does not prove you where under the influence of dagga while you where performing your duties as employee.

Scientific Fact

There is no known scientific method for testing dagga intoxication in a similar manner to alcohol.

THC metabolites, which most tests look for, remain in the body long after you have smoked dagga.

You may have smoked your last bong on Saturday night and depending on how frequently you toke, you could still test positive months later.

Conclusion

  • While dagga is illegal don’t smoke at work.
  • Don’t keep dagga on you, in your vehicle or at work .
  • Get legal representation.
  • Inform your representative of the scientific facts surrounding dagga. It is highly likely that he/she doesn’t know much except for propaganja.
  • Remember: Tobacco, alcohol and coffee are also drugs.
  • You are not a drug addict for testing positive for dagga use.
  • You are not a criminal for testing positive for dagga use.
  • You are not proven intoxicated or under the influence for testing positive for dagga use.
  • You have not broken any laws by testing positive for dagga use.
  • You are not guilty of misconduct for testing positive for dagga use. Especially so if you only smoke dagga on your own time and in the privacy of your own home.
  • Misconduct, in regard to testing positive for dagga, can only be proven where the company is also implicated. Eg. You are found to be in possession of dagga while driving a company car or you smoke dagga in public while wearing company uniform.

The arbitrator’s decision is final and money talks. Please see sources more information.

medical-marijuana-privacy

What you need to know about drug testing in the workplace

The South African Occupational Health and Safety Act No. 85 of 1993 is the national legislation that protects employers, employees, and all business stakeholders from injury and death, and also covers various aspects of occupational health to ensure that the workforce and those who supplement and rely on it are protected at work. Every business in every industry can benefit from observing the law in this regard, especially where those businesses are affected by the overt and subtle dangers of drugs.

Employees and the OHS Act

Employees who use and abuse drugs during working hours or who arrive at work under the influence of drugs are putting themselves and their colleagues in danger. The OHS Act states emphatically that employees will take reasonable care for their own as well as their colleagues’ health and safety – as well as the health and safety of any other people who are affected by his actions or omissions. Someone under the influence of drugs can cause huge problems in this regard, especially by the irresponsible nature of drug abuse. Their absenteeism, errors on the job, as well as possible accidents not only cost time and money in terms of equipment and productivity, but can also endanger the lives of others.

Employer responsibilities

As an employer, your duties include preventing employees from coming to and staying at work if you can clearly deduce that they are under the influence of drugs (or alcohol). As part of this prevention plan, you should include a policy on drug and alcohol testing, which every employee should be made aware of when they sign their employment contract. You have the right to conduct random or motivated drug and alcohol tests to not only protect your business, but your employees too. However, it’s important that you don’t infringe on employee rights in the process, which include:

1. Employee consent

Before you perform drug and alcohol tests, you need to gain consent from your employees. This can be gained if you have a full, contractual Occupational Health and Safety Policy in place, which is set out in the employment contract. The employee’s signature on their employment contract subsumes their consent for drug testing.

2. No undue discrimination

It’s important that you don’t single out specific employees for drug testing in a discriminatory way, but that random testing is indeed random. If drug testing is justified by the nature of an employee’s job (i.e.: heavy machinery operation that risks their and others’ lives), then gain their consent prior to testing.

3. Follow due procedure

If you need to search an employee for drug possession, it’s important to follow due procedure: respect the employee’s right to privacy; only perform same-sex searches (men search men, women search women); and have an unbiased witness present. If an employee refuses a drug test when you have adequate grounds to believe they are/were under the influence while engaged in their employment duties, they may face disciplinary action. However, be 100% sure that you are following due procedure according to the OHS Act

 

Disclaimer: The opinions expressed in this article should not be taken as legal advice. We recommend that you seek legal council from a CCMA representative or an attorney dealing in labour law. 

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Dagga Couple – Know Your Rights

This is written for you: The Dagga user, grower or trader. From the medical patient who depends on the plant for relief to the casual smoker. From the pensioner who has arthritis to the gardener, the musician, the mechanic, the student, the lawyer, the IT specialist. Many people from all walks of life are arrested in connection with Dagga every day in South Africa. Do not think that you are immune or invincible.

Marijuana Arrest: Capt. Keith Pendergrass searches a man found to be in possession of marijuana during a traffic checkpoint Friday June 8, 2012. The man was transported to the Wilson County Detention Center where he was charged with Felony Possession of Marijuana, PWISD Marijuana, and Maintaining a Vehicle for the sale of Controlled Substances. Brad Coville I Times
Marijuana Arrest: Capt. Keith Pendergrass searches a man found to be in possession of marijuana during a traffic checkpoint Friday June 8, 2012. The man was transported to the Wilson County Detention Center where he was charged with Felony Possession of Marijuana, PWISD Marijuana, and Maintaining a Vehicle for the sale of Controlled Substances. Brad Coville I Times

It may be your turn next. Know your rights BEFORE this happens to you.

Possession of cannabis is illegal and punishable in terms of the Drugs and Drug Trafficking Act 140 of 1992. There are NO permits, medical certificates or cards, prescriptions or permissions of any kind available in SA.

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