This is a guest blog written by Advocate James Grant and published on his website: Critical Law – The Law as it is and ought to be – on 10 February 2019. James is our JoinTheQ Dagga Arrest Helpline Advocate and has been a pillar of strength as we deal with difficult cases from both before and after the Constitutional Court Judgement.
James’ legal opinion piece flows from an advocate who has seen the painful process of Cannabis charges from within the gutters of Johannesburg’s Magistrate’s Courts. When you have seen the trauma that is caused by simple possession charges that are drawn out over months and even years, you are forced to look deeper. Thank you James for dissecting the confusion! To those of you battling in court, get your legal team to read this piece or, if you are representing yourself, there is certainly hope for a favourable outcome. The South African Constitution is on your side.
The recent decision of the Constitutional Court in Minister of Justice v Prince (“MOJ v Prince”)was met with ululation in court. The Court found decisively in favour of the private use, cultivation and possession of cannabis – in private.
The decision went to far for some, and not far enough for others. It is also unclear on some points and in other respects it will be argued that the court is, with respect, wrong. I will argue, for instance that the Court was wrong in attempting to restrict its decision from having a retrospective effect and in leaving the question of what constitutes an amount that one may cultivate or possess for private purposes to the discretion of police officers. These arguments are not appeals to some or other moral judgment, but are based on legal principles. They are also not an attempt to find loopholes in the law so as to permit the unscrupulous entrepreneur to get a head start on everyone else in making money from cannabis.
Indeed, money probably ought to be made from the plant, but in a way that is open to all and does not permit the unscrupulous to get rich by breaking the law or for the rich to get even richer.