Cloud of doubt hangs over dagga prosecutions
Accused apply for stays of prosecution while Constitutional Court mulls high court decision
People arrested for possession of dagga should be advised by their legal representative to apply for a stay of prosecution pending the Constitutional Court judgment on whether laws banning dagga use at home are unconstitutional, said a legal expert.
Constitutional lawyer at Shepstone and Wylie, Nerisha Besesar, also cautioned that people be careful when signing an admission of guilt. “In many instances, people who are charged criminally end up signing admissions of guilt without realising that they will then have a criminal record.”
The ban on the private use of dagga was found by the Western Cape High Court to be unconstitutional but this March 2017 judgment needs to be approved or rejected by the Constitutional Court.
The case was heard in the Constitutional Court in November but judgment has still not been made.Meanwhile, the so-called dagga couple, Jules Stobbs and Myrtle Clarke, have managed to help 90 people obtain a stay of prosecution for possession of, or dealing in, dagga, with the latest one granted in the Johannesburg high court last week.
A stay means people cannot be prosecuted for dealing in or using marijuana until Clarke and Stobbs’s legal challenge is complete. The couple are asking the Pretoria court to strike down all the laws banning the use, cultivation and sale of marijuana for recreational and medical use. They were arrested in 2011 for dealing and possession after police raided their home, which is built in a grain silo near Lanseria Airport.
Their argument in the high court is that the laws banning dagga are irrational and do not serve the purpose of reducing the use or abuse of marijuana, and that the initial ban of dagga was a racist, colonial law.
Clarke and Stobbs’s high court case will not resume until the Constitutional Court judgment is made.
If the Constitutional Court rules that laws banning dagga use are unconstitutional, thus legalising dagga use, the pair may not need to return to court, their lawyer explained.Clarke says the 90 people they have helped obtain a stay include someone arrested with 500kg of dagga, and those who use cannabis oil to relieve pain.
Their colleague, Charl Henning, through an NGO has helped many people obtain a stay of prosecution.
Henning said: “Every case is different. If you are arrested for cannabis, some magistrates will give you bail, some will strike the case off the roll and some magistrates will try to refuse the stay of prosecution application.”
Henning explained that once a person is arrested and charged with possession, dealing in or cultivating marijuana, they can print the documents required for a stay based on the Stobbs and Clarke case. They need to send this to the magistrate, state attorney and prosecutor.
The three parties have 21 days to respond. If they don’t reply the accused approaches the high court and is granted a stay, meaning they can’t be prosecuted until Clarke and Stobbs’s case is concluded.
If the prosecutor objects to the stay the case goes to court.
Henning has now been told applications for stays must be served through the sheriff of the court.
“One sheriff will accept documents, another won’t. No one seems to know what is going on.Tony Trittis, a Johannesburg resident who calls himself Greendalph, has appeared in the Randburg Magistrate’s Court 22 times to ask for a stay of prosecution for cultivating dagga at his Johannesburg home.
Trittis, who dresses in robes like Gandalf in The Lord of the Rings, was arrested 18 months ago.
Police spotted large dagga plants in his garden and told him to cut them down. He said he had about 50, which he uses to makes cannabis oil for pain relief. When they discovered his indoor room with about 30 plants growing under lights, they called the Hawks.
Trittis has a legal aid lawyer and will appear in court on September 6 when the case is expected to be concluded. He believes he will get his stay.
“If you are in court, you need to stick your head up or you will get railroaded,” he said.
Asked if it was unfair that some people caught dealing or using dagga get prosecuted when others get stays of prosecution, the dagga couple’s lawyer, Paul-Michael Keichel, said: “The stay in prosecution applications are premised on equality (‘Stobbs and Clarke got one, so we should too ... ’). However, it is the nature of the courts that one must apply for relief,” Keichel said.
He said “the National Prosecuting Authority must, by now, know the attitude of the courts, so it could be argued that they really ought to be backing off prosecutions of cannabis-related offences, or informing arrested persons of their right to apply for a stay”.
The Department of Justice did not respond to queries.