Court’s decision to hold off on prosecuting Rocklands man until ConCourt verdict expected to lead to flood of similar applications
A weed-smoking woodcutter has become the first person in the Eastern Cape to obtain a stay of prosecution pending the outcome of a constitutional challenge by a husband and wife widely known as “the dagga couple”.
The ruling by the Port Elizabeth High Court that the National Directorate of Public Prosecutions (NDPP) hold back on prosecuting Bryan Jones has now opened the floodgates for other dagga users to bring similar applications.
Jones, 38, of Rocklands, was arrested in March last year on charges of possession and cultivation of dagga.
In June this year, he approached the high court, asking that the criminal case in the Humansdorp Magistrate’s Court be set aside pending the outcome of proceedings and all possible appeals instituted by Krugersdorp couple Julian Stobbs and Myrtle Clarke.
Jones’s application against the Minister of Justice, the NDPP and a Humansdorp magistrate was unopposed.
Stobbs and Clarke are challenging the provisions of the Drugs and Drug Trafficking Act in an attempt to have the outlawed plant legalised.
Jones’s attorney, Chris Morgan, confirmed yesterday that the ruling last month was the first of its kind for the Eastern Cape.
And now other Nelson Mandela Bay residents facing similar charges are hoping to ride on Jones’s coat-tails.
“With regards to other cases, it is still to be seen what will be done,” Morgan said. “But we can expect a flood of similar applications or even a class action.”
Port Elizabeth attorney Dean Murray said that in light of the high court decision he would also bring an application to have proceedings against one of his clients stayed on the same basis.
“My client’s trial [for possession and cultivation of dagga] is set down for November,” he said. “I plan to approach the state before then.”
“If the prosecutor is not willing to withdraw the charges based on this order, then we will approach the high court.”
Similar to Jones, the “dagga couple” were charged with possession and cultivation of dagga in Krugersdorp.
Jones echoes their belief that the prohibition of dagga is unconstitutional and a relic of apartheid.
The Constitutional Court application will probably only be heard next year.
Jones said yesterday that while he was happy with the outcome of his case, and although “the other stoners never supported me”, he never doubted he would be successful.
He said he had used dagga, in various forms, on and off for 19 years.
He was arrested on March 10 last year.
“I am a fit, healthy, functional, taxpaying and charitable citizen of South Africa with no criminal record,” he said in court papers.
“It goes without saying that if I am successfully prosecuted, I will face criminal sanction. I consider this prospect unconstitutional.” Jones said he, therefore, had a sufficient interest in the outcome of the dagga couple’s case.
“My human rights have been violated by a law that is unjust, not supported by any scientific evidence and outdated,” he said in the papers.
“The punishment far outweighs the ‘crime’ as smoking dagga should not be seen as a crime at all. “I reserve the right to smoke whatever I want in the privacy of my own property, with whomever I wish.”
“I am not harming anybody and the government has no right to treat us like criminals.” Jones said he also reserved the right to self-medicate.”
“I am a healthy individual and believe that my daily use of dagga contributes to my healthy immune system,” he said.
“Why are we, by law, allowed to kill ourselves and others with alcohol and/or tobacco but we are not allowed to smoke dagga when there has never been a single recorded death due to smoking dagga?”
Justice spokesman Mthunzi Mhaga said they would abide by the court ruling and await the outcome of the constitutional matter.