In a landmark judgement, Constitutional Judge Johann Kriegler rules that suspicion of dealing cannot be upheld just because Dagga plants are growing on somebody’s property. The 1992 Drugs and Drug trafficking Act was changed as a result of  the ruling. All too often, Dagga users are guilty until proven innocent, and this decision took some of the edge off the suspicion. We always maintain, growing plants in the African sun is a lot more explainable that a factory full of hydro…..

Afrikaans Newspaper Rapport in October 1997 reported the ruling thus:

ROLL A JOINT – BUT JUST FOR YOURSELF by Eben Engelbrecht

RAPPORT 19 October 1997

From this week onwards you can plant a few dagga seeds in your back garden between the flowers – the police will not bother you anymore.You can now freely walk around the streets with pockets full of the stuff, as long as you just don’t bargain from it.

This follows after the Constitutional Court calmly announced on tuesday that if dagga grows on private property, the law may no longer automatically assume that the property owner planted it there.

Judge Johann Krieger revealed in an unanimous announcement that the concept of suspicion, as known in article 21 of the Law on Drugs and Drug-Abuse, is unconstitutional.

The finding also implies that when anyone is caught with dagga in their possession, the police may not automatically assume that the person in possession is selling any of it.

The applicant in the case, a black man from Durban, was found guilty in the lower courts for dealing dagga. On revision in the Durban High Court, two judges found that the assumption clashes with the regulations of the Constitution that an accused must be deemed innocent until the state can prove otherwise.

The Constitution also stipulates however that when a higher court finds the law or sections of it is unconstitutional, as in this case, the findings must first be confirmed by the Constitutional Court.

Alongside his milestone finding, the Constitutional Court also commanded that the finding of the unconstitutional ________________

By implication this means that everyone who has been found guilty in terms of dagga offences after the commencement of the transition of the Constitution on the 10th of May 1994, and those whose cases are not yet settled will get off scot-free.

For those that smoke a joint every now and then, Judge Kriegler’s announcement should be good news, because now they may buy and smoke dagga as they please, only if it is for personal use.

The concept of personal use is open for discussion, says a speaker of the South African Narcotics Bureau (Sanb). So for example, it would be a bit difficult to convince a cop or the court that the 50 packets in your garage and the neatly planted 100 hectares on your farm is only for personal use.In the above mentioned hypothetical case the evidence would be overwhelming and there is little to assume.

Fear that the Constitutional Court sentence regarding dagga smoking in South Africa seems to be unfounded. Carrying on a trade with dagga, even just one ‘stompie’, constantly remains against the law.Sanb warns that South Africans should not interpret Judge Kriegler’s announcement should dagga now become legal.

The Actual Judgement and commentary can be downloaded here:
Ntsele judgement
S v Ntsele