Please note that these are personal notes and not meant to be an exact record of the proceedings. We hope that a transcript of the proceedings will be made available to the public.
The matter is the state’s appeal to the Western Cape High Court judgement on 31 March 2017 in the matter between various state departments and Jeremy Acton, Garreth Prince and others.
The day started with Adv Ndumiso Voyi acting on behalf of King Adam Kok V and the Griqua Nation under his leadership as well as Chief Petrus Vaalbooi and the /Auni San People under his leadership. Adv Voyi had been instructed by the court to move his client’s motion to intervene in this matter at the start of proceedings. The advocate was given 30 minutes and he outlined the fact that his clients are “first nations” people who were using this plant long before the white colonists arrived in Southern Africa. This is a history that we all know too well. The main question raised during this section was: “What will happen should the Constitutional Court declare that the laws prohibiting Cannabis are invalid but suspends this validity for two years so that the legislature has time to change the law?” This is a very good question and we wish we had an answer.
Next, Advocate Bokaba, for the state, took the stand. He started out by outlining the “perceived” harms of Cannabis and mentions that these issues are part of the evidence in The Trail of the Plant, currently postponed sine die in the Pretoria High Court. The bench then asks whether these proceedings should be stayed pending the outcome of The Trail of the Plant. Adv Bokaba says that it would not be in the interest of justice to stay these proceedings.
Deputy Chief Justice Zondo asks all counsel to comment on this once the day’s proceedings are over.
Justice Zondo and Justice Madlanga then bring up various issues from the WCHC judgement – What constitutes a private home? What about the rural areas where there are no fences? What amounts would be allowed? Are there not too many loopholes here? Why are there not threshold limits for alcohol and tobacco? Adv Bokaba replies that Cannabis is different and “I don’t understand alcohol to damage the brain.” He mentions boni mores, (a term broadly denoting good public policy or proper moral sentiment) as a way of justifying the legality of alcohol and tobacco. Justice Madlanga then intervenes to ask whether these are negative statements about SA’s indigenous people and also asks again about “thresholds” (referring to how much Cannabis will be allowed).
Justice Cameron then comments that political, social and racial classes are associated with disparities in criminality.
Justice Theron then remarks that surely there should be a rational basis for the law?
Justice Kathree-Setloane then states quite firmly that there are scientific studies that show that Cannabis is NOT a gateway drug.
Justice Kollapen then interjects that there is unity in diversity and we have to accept that there are things that we don’t like that we allow in the interests of democracy.
Justice Froneman asks “Why is it classified dangerous / dependence producing? Who wrote that law? Who classified it? Who? That classification has been attacked.
Adv Bokaba replies: “The Registrar of Medicines.”
Justice Jafta interjects: “Talking about procedure… The main issue is whether impugned provisions constitute a justifiable limitation?”
Justice Zondo then asks whether these proceedings should be stayed right now to hear expert evidence (TOTP2?) and asks to hear from each counsel. Prince, Acton, Voyi, Pashke and Mahon all indicate that we should proceed. Adv Mahon adds a point about the paucity (the presence of something in only small or insufficient quantities or amounts) of the judgement. Willis and Bokaba indicate that the proceedings should be stayed pending the outcome of The Trial of the Plant.
Justice Zondo then invites all parties to make written submissions on the question of whether these proceedings should be stayed.
End of Adv Bokaba’s presentations to the court and we break for tea. During tea various parties brought up the issue of the sound in the court and it was much improved when we resumed.
Adv Paschke starts his presentation to the court. Justice Zondo mentions that the court is indebted to Adv Paschke and Adv Vorster for their assistance as amicus curiae at short notice. Read the independent amici heads of argument here.
The first point made by Adv Paschke is around the separation of powers – courts and the legislature. The court is clearly cognisant of the WCHC judgement and courts are empowered to ensure that legislative provisions pass constitutional muster. This is an important point to begin with as there have been lengthy discussions around this issue in the court papers and during TOTP. Adv Paschke refers to the Stransham-Ford judgement concerning dignity in dying. We pay extra attention because the late advocate was the captain of our ship before he died. Opposition to dignity in dying is a moral judgement, as are issues around the death penalty, prohibition of sodomy, corporal punishment in schools, abortion, etc. Adv Paschke brings the court’s attention to Doctors for Life’s opposition in all the above matters. The court cannot shrink from its responsibility in matters of profound moral value. He uses the analogy that selling sex is analogous to selling drugs. The issues are the same – do we permit, prohibit or abstain? Citizens have a right to privacy, dignity, freedom of religion and culture. Any limitations of these rights requires a cogent justification. The separation of powers does not hamper the court’s decision in these important matters.
Justice Froneman then refers to the Alcohol and Tobacco Act and the fact that these two substances are not listed / scheduled. He asks whether there is an attack on this and points out that the WCHC judgement is only about privacy, not about the schedules. He says that the High Court made assumptions and that there should be no distinction between medicinal and non-medicinal use. He says that this is not clear.
Justice Zondo: Isn’t there a body that could decide what to include in the schedules? It must be assumed that they have a basis on which to make a decision.
Adv Paschke asks what the true motivation is behind the schedules and remarks that there has been no re-evaluation of the schedules. This is very important to us because we have submitted a PAIA request (public access to information) and the state are refusing to tell us what is guiding the talk about the rescheduling of Cannabis.
Justice Jafta then says that the burden is on the state. Adv Paschke agrees and Justice Jafta says that we need to look at the evidence. Adv Pashcke then says that the state does not have sufficient evidence / Cannabis is not physically dependence producing. All other claims – crime, trafficking, etc – hold no weight. The evidence does not show proportionality. The harms are not about Cannabis, the harms are about prohibition. Nobody gets the importance of that balance.
Adv Paschke then outlines the harms of prohibition & issues with the current system:
- Quotes 45000 Cannabis arrests per year.
- Even the Central Drug Authority says that prohibition is ineffective
- It is irrational to consider thresholds – you may only procure, possess or consume a certain amount or certain levels of THC, for example. There is no line that says prohibition is justified over a certain limit.
- Less restrictive means are available and the state has not sought to show any of these.
- The state has no idea how to deal with the issues around driving, children or international conventions.
- (Justices Froneman and Cameron interject that it would be good to know what is happening in the rest of Africa)
- The NPA is willing to offer diversion programmes for citizens arrested on Cannabis charges and this shows that that the state does not believe in its own laws. Justice Jafta interjects: “Does this not undermine your own submission Adv Paschke?” He replies that diversion is arbitrary.
- The proposed order is not impossible to enforce.
Ras Garreth Prince takes the stand. He starts by outlining that his counsel in his case referred to as “Prince 2” undermined his case by stating that he believed that there was justification for the prohibition of Cannabis.
Ras Prince continues that this case is not about the harms of Cannabis as it is not acceptable to regulate Cannabis through the criminal justice system. Inclusion of Cannabis in the schedules is unconstitutional.
Justice Zondo asks Prince about the High Court and privacy and Judge Mahlantla remarks that this court only has the issue of privacy on the table.
Ras Prince answers that there has been a shift in purpose. In 1923 the government banned the use of Cannabis because of racism and now it is banned because of harms? He outlines that there are many who have achieved a stay in prosecution for their Cannabis charges but every accused has to go through the court system. He ends his submission by asking the court to declare a moratorium on Cannabis arrests.
Jeremy Acton takes the stand and starts by stating that he is a lay person and that the privacy judgement is no broad enough. Jeremy reiterates the importance of the history of Cannabis prohibition. You can read the heads of argument submitted on behalf of a long list of WCHC plaintiffs here.
Adv Don Mahon for Stobbs, Clarke and Thorp, intervening parties, takes the stand. At this point we stopped taking notes because we were riveted by our counsel’s submission. The bench asked insightful questions and our heads of argument contain all the points raised.
Adv Willis for Doctors for Life takes the stand. He started his submissions by complaining about court processes and the bench reminded him that his role in this court was as amicus curiae, friends of the court. He was asked to be clear about why he was here. DFL’s application to be amicus and subsequent correspondence outline the position of the 8th defendant in The Trial of the Plant and also gives a good indication of what we are facing in terms of opposition to the legalised regulation of Cannabis in SA.
Adv Bokaba takes the stand to deliver the state’s reply to the day’s proceedings. He starts by saying that the WCHC judgement contradicts the core right to privacy because the order does not make provision for the possibility of harm to both adults and children.
Justice Kollapen and Justice Kathree-Setloane interject with the question: “What you are saying Adv Bokaba is that adults should ask other adults permission to smoke Cannabis?” Adv Bokaba continues by saying that the court must not look at the origins of prohibition but rather at whether rights have been violated. The criminalisation issue is covered by the fact that the law is based on science. The fact that the legislation is impractical does not mean that it is wrong.
Advocate Bokaba’s most telling remark is when he says that criminalisation is not so bad because there are admission of guilt fines and diversion programmes available to the accused. Anyone who knows the terrible trauma suffered by thousands of citizens under these outdated, racist laws will understand the ridiculousness of the advocate’s statement. He goes on to say that the whole point of the provisions is to keep Cannabis out of the hands of the people and prevent trafficking. Prohibition is based on the harms caused by Cannabis. This hearing is only about privacy so the advocate asks the judges to stop bringing in equality, etc. Judge Zondo interjects that the court has the discretion to deal with other rights if they have been submitted correctly and that is the end of the state’s reply.
Deputy Chief Justice Zondo reminds the parties that the court will be issuing directives with regard to submissions around whether these proceedings should be stayed pending the outcome of The Trial of the Plant in Pretoria and the court is adjourned.
We would like to thank all who supported us on the day, whether in person or from afar. None of the parties would have come so far if we didn’t have such amazing support across the board.