• J.S. O'Donoghue

THE DAVIS RULING


THE WCHC DAVIS RULING - WHAT IS THIS CASE ABOUT?

As defined in the ruling by Judge Davis and the legal experts he engaged to examine the applications and current available evidence, this case asked the questions:

  • Are the laws which prohibit the possession, use, purchase and cultivation of Cannabis valid for personal, adult consumption in the privacy of the home?

  • Should the court or parliament decide on the validity of these laws?

According to Judge Davis, the applications “revealed a lack of legal precision, particularly in the framing of the relief sought”. In other words the court had to determine itself precisely what outcome was being sought according to the information available in the applications. This was the major restriction in this case as the Court can only act within the scope of the challenge made by the applicants.

What the Court determined from the Prince application was that it related exclusively to the personal use of Cannabis in the home by adults.

This brought the following laws into question:

  • Sections 4 (b) and 5 (b) of the Drugs and Drug Trafficking Act 140 of 1992 read with part III of Schedule 2 to the Drugs Act “insofar as it relates to the simple possession, cultivation, transportation and distribution of Cannabis for personal consumption”,

  • Section 21 of the Drugs Act

  • Sections 22 (9) (a) (i) and 22 A (10) of the Medicines and Related Substances Control Act 101 of 1965 read with Schedule 7 insofar as it relates to the consumption of Cannabis,

The highlighted provisions were ruled unconstitutional as they relate to the right to privacy when it comes to adult consumption and cultivation of Cannabis in the home. The ruling was suspended for two years to give Parliament time to bring the laws into alignment with the Constitution which protects the right to privacy. This was the ONLY right attended to in the applicants’ case. The State has the option to appeal this ruling, if they fail and Parliament will decide on how to reword the law to protect this right.

It must be pointed out here that:

Although handled extensively in the ruling (see below) the legislative provision against the possession and use of Cannabis in Section 21 of the Drugs Act, which allows the Court to presume dealing in certain circumstances, was not specifically included in the final order. Most of these provisions have already been dealt with by Constitutional Court over the years.

Of more concern is that the Medicines & Related Substances Amendment Act, 2015 yet to be promulgated which places all natural substances used for the treatment or prevention of disease in humans and animals under the control of S.A.H.P.R.A. (the M.C.C.), has not been challenged in this case. Nor did the applicants challenge the Medical Innovations Bill, clearly a bigPharma innovation, currently under Parliamentary review, in any way. Both of these Acts literally hand over control of all medicine, natural or not, and including Cannabis, to the pharmaceutical companies which lobby the Dept. of Health.

So, even a ruling that declares personal adult consumption of Cannabis in the home unconstitutional, is no victory at all if Cannabis is placed under the administrative and executive control of the Medicines Control Council, who have proposed extremely restrictive control systems for commercial Cannabis. If these regulations are endorsed by Parliament, all this mean is that only large corporations or wealthy individuals will be eligible to engage Cannabis and Cannabis related products commercially under license. Hundreds of thousands, if not millions, of people will be denied the opportunity to improve their lives significantly through Cannabis cottage industries.

The order has been suspended for two years which means that during that time, anyone can still be arrested and charged for possession and, if they plead not guilty and use this case as a defence, they will be granted a Stay of Prosecution until the matter is resolved. NOTHING is legal yet, and the ruling does not in any way declare Cannabis use of any form legal. It simply rules that the applicable laws are an infringement of the right to privacy – one of over fifteen platforms under the Bill of Rights from which to challenge Cannabis laws.

Although Acton did present information on other uses of Cannabis, the legal team determined that there was little actual evidence presented. Rather the information was a collection of articles, some written by Acton himself, and contained no expert evidence which the court requires in order to make an assessment. Consequently, Acton’s evidence had no effect on the ruling.

The applicants were to a large extent asking for something that already exists. Anyone arrested for Cannabis may plead not guilty by reason of the unconstitutionality of laws relating to the prohibition of Cannabis on the basis of the many stays of prosecution granted to date. They will immediately be granted leave to go to High Court, and will basically be included in the Constitutional Court challenge of Myrtle and Stobbs, if they do not wish to present their own case. They can also present their own case alongside Myrtle/Stobbs. This case is presented to High Court who will rule whether it has to proceed to Constitutional Court or to Parliament for redress of the laws challenged.

The victory is that the Judge acknowledged the import of this case and has given us all a means to challenge these laws fully by participating in the process.

There is an argument and evidence available from SACCRA for the use of members. This argument goes way beyond the scope of the application ruled on here and includes original evidence as well as expert testimony in the form of signed affidavits from actual international experts. It also offers the Court alternate means to fulfil the purpose of prohibitive laws when it comes to commercial Cannabis, via the proposed Cannabis Community Association based regulatory structure.

The biggest mistake made by Prince in his previous challenges was agreeing that prohibitive laws were valid and served a valid purpose. The biggest mistake in this case is sticking to the domain of personal use in the home only, and not going all out to challenge the unconstitutionality of Cannabis prohibition altogether. It is a PLANT!

The SACCRA argument proves beyond the shadow of a doubt that:

a) Cannabis is a plant

b) Cannabis is beneficial nutritionally, medically, industrially, agriculturally, environmentally and in terms of socio-economic development for the sake and benefit of all South Africans, and offers a comprehensive plan for the implementation of a completely legal, responsibly regulated, community-based Cannabis industry.

c) Cannabis is safe and not addictive

d) Prohibition of Cannabis is unconstitutional and serves only corporate vested interests

e) It is possible to remove Cannabis from the law completely as any undesirable behaviour involving Cannabis can be prosecuted under umpteen other laws.

The bottom line is that there is NO RULING ON COMMERCIAL PURPOSES whether for INDUSTRIAL, AGRICULTURAL, ENVIRONMENTAL, MEDICAL OR ANY OTHER USE, and it certainly does not allow for the supply of any form of medicine outside of current MCC restrictions.

There is also nothing in the ruling relating to treating children with Cannabis, and giving children any form of Cannabis, even a topical balm or non-psychoactive tincture, remains completely illegal and will continue to do so unless Parliament decides otherwise. Also, being in possession of Cannabis in, on or within 100m of a school property means the act of dealing will be presumed and heavier penalties will apply.

As it stands already, unless you implicitly or explicitly allow an officer to search your person or dwelling without a properly constituted search warrant, he is acting outside of the right to privacy protected by the constitution, and the arrest is invalid. This was ruled on last year in Constitutional Court very clearly.

In future, officers will have to have clear probable cause and gather sufficient evidence to apply to a magistrate for a search warrant and serve it on you in order to be able to establish whether you have committed a crime. This search warrant has to be correct in every detail and can be challenged if any detail is not correct.

This has actually also always been the case as we have often said. Most often, the officers get away with it because the person complies with them and does not challenge their presence on their private property without a search warrant, or to arrest them without an arrest warrant. So, this ruling has given us some bite – if we are willing to stand in it.

In many cases these officers have come en masse and are extremely intimidating all of which we have proved in our experience can be politely challenged and which can lead to their own prosecution if they act outside of the law. It even goes as far as, if you own your property and are not a flight risk, they have alternate means to prosecute i.e. serve a summons to appear in court, rather than arrest you. Most Cannabis arrests violate the right to dignity, which is absolutely protected under the Constitution, since the actions of the officers do not fit the severity of the “offence”.

The time has come for all of us to stand together and act intelligently to be the change we wish to see.

JS O’Donoghue

THE SOUTH AFRICAN CANNABIS COMMUNITY & REGULATORY ASSOCIATION


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