Current Affairs

PART ONE: Why the South African state needs to lose its fight against marijuana policy reform

Marijuana plant
Marijuana plant Picture: Thinkstock
The point isn’t whether marijuana causes harm, but whether criminal prohibition is the best way to address those harms.

South Africa is among many countries facing challenges to their drug control policies, particularly around marijuana, known locally as dagga. The Medicines Control Council is developing guidelines for production for medicinal use and the country’s highest drug policy guardian has recommended broader decriminalisation.

The key battle ground, however, is in the courts.

A new trial the state is likely to expend considerable energy trying to prove that marijuana use is seriously harmful. If this is indeed the substance of its argument, it should lose. The point isn’t whether marijuana causes harm, but whether criminal prohibition is the best way to address those harms.

South African Police Service statistics suggest that most anti-drug activity is against those in possession of small quantities. These are people who are unlikely to play any strategic role in drug supply, and whose deterrence or removal from the market has little prospect of having any impact overall.

The legal wrangle to date

The first recent knock to prohibition came in 2016 with a ruling by the Constitutional Court. The court held that the constitutional right to privacy was unjustly violated by parts of the country’s drugs and drug trafficking act that allowed a law enforcement officer to stop and search any person, property or vehicle on the grounds of “reasonable suspicion” of violation of the Act. The ruling meant that police would no longer be able to enter and search private properties without a warrant.


A bigger challenge came from the Western Cape High Court. This case was brought inter alia by Gareth Prince. Prince lost a case in the Constitutional Court in 2002 that sought exemption from the laws on the basis of his Rastafari religion.

Prince’s more recent case sought not just an exemption based on religious freedom, but to challenge marijuana prohibition overall on various grounds – including that it was based on an irrational distinction from alcohol. Ras Prince brought the case with Jeremy Acton, leader of the Dagga Party.

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Judge Dennis Davis, for a full bench, found that the criminalisation of marijuana within the home unjustifiably limited the right to privacy. He concluded that the state had failed to show that criminal prohibition was the least restrictive way to deal with the problems caused by marijuana. The order was suspended for 24 months to allow parliament to amend the relevant laws.

The state quickly indicated its intention to appeal and to continue enforcement without any change. But it seems that several people charged with marijuana crimes have received stays of prosecution pending the outcome of the legal process.

A separate case is about to kick off in Pretoria. Myrtle Clarke and Julian Stobbs, known as the “The Dagga Couple”, have turned their arrest for possession into a decriminalisation crusade. Their team has raised funds for local and international expert witnesses to help them make their argument that the criminal prohibition of marijuana is irrational, wasteful, and unjustifiably infringes numerous constitutional rights.

This is the first time that the issues will have the chance to be properly aired in court.

It’s long overdue.

Pattern of arrests

According to the South African Police Service’s annual report, there were 259,165 recorded counts of illegal drug possession or dealing in 2015/16. These charges resulted in 253,735 arrests, accounting for almost a sixth of all arrests.

A Rastafarian lights up during a march for the legalisation of marijuana in South Africa. EPA/Nic Bothma

Most drug arrests are made through stop-and-search or roadblock operations. National figures aren’t available but those from two of the nine provinces suggest that a vanishingly small proportion of drug charges (2%-4%) are for dealing as opposed to possession of drugs. Very few drug arrests are made at ports of entry, through special operations, or through the Serious Organised Crime Investigation Units.

Between 65% and 70% of drug charges are for possession of marijuana. The presumption is that possession of over 115 grams (about 4 ounces) constitutes dealing. This means that every year police seek out and charge about one in every 300 people for possession of an amount of marijuana that weighs no more than an apple.

(As Seen first in The Conversation)

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About the author

Ofentse Maphari