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Courts Have Ruled Drugs and Drug Trafficking Act is ‘Unconstitutional’; Why Is It Still Being Used as a Blunt Instrument?

Sibusiso Shange was on the wrong side of the road. Both in terms of the N1 and the law. The 38-year old truck driver has been sentenced to 10 years in jail for transporting 2,5 tons of illegal cannabis after police caught him driving badly near Beaufort West.

On 2 September 2021, while the Beaufort West Regional Court found Shange guilty under the Drugs and Drug Trafficking Act of 1995, Parliament’s Justice and Correctional Services Committee was being told that the act was unconstitutional and out of kilter with government’s own cannabis reform initiative.


Revoke Drugs Act Altogether, Replace with New Act that Regulates Cannabis Trade

“We should revise the Drugs and Drug Trafficking Act in toto. It is outdated, unscientific and irrational” Schindlers Attorney’s Paul Michael Keichel told MP’s.  “There should be a completely new Cannabis Act altogether that regulates legal trade”.  

Schindlers’, Cannabiz Africa’s Legal Desk partners, has long called for a halt to cannabis arrests and the Act was already found to be unconstitutional by the South Gauteng High Court on 24 July 2020.


Rastas tell MPs: Police brutality is a daily part of our lives

Shange’s day of reckoning on 2 September 2021 coincided with the first time ever that the voice of the Rastafarian community has been heard in Parliament. Some 10 Rastafarian organizations from around the country made virtual submissions, all united in saying that they were subject to Apartheid-style police repression because of their ritual use of cannabis. 

“We are an easy target for police who have to fulfil their quota of arrests at any given time” Sister Letty of the Mpumulanga Ras’Tafari Community told MP’s.  

“We believe in the complete freedom of the plant. Everyone recognizes that cannabis is part of Rastafarian life, but police harass us all the time. We have suffered police brutality under Apartheid and we have suffered police brutality under the democratic government purely because we are the custodians of cannabis”.

The day before Shange was sentenced, on 1 September 2021 lawyer Ricky Stone made an impassioned plea to President Ramaphosa to halt all cannabis-related arrests and the expungement of cannabis criminal records. Stone, speaking on behalf of the uMzimvubu Farmers Support Network, which represents rural cannabis farmers in the informal sector, said that under traditional law, the cultivation and distribution of dagga was legal. 


‘SAPS officers are ignoring directives from the national commissioner’

That same day, Parliament was reminded that there was a 2018 directive from the Commissioner of Police calling for pull-back on cannabis-related arrests. 

We are tired of being arrested, harassed and corrupted by the SAPS” Myrtle Clarke of Fields of Green for All told MP’s 

 “Despite orders from the highest echelons of the police, the harassment continues. We have over 300 documented cases since 2018 of cops acting in direct contravention of the Constitutional Court judgement and there’s a queue of over 100 cases in Pretoria waiting for the ‘Trial of the Plant’ to be heard in the High Court”. 

She called for a Cannabis Commission of Inquiry to which the SAPS would have to account.

Obviously unaware of all this noise, Western Cape Police Commissioner Lieutenant-General Thembisile Patekile welcomed Shange’s sentence and commended law enforcement officers involved in the case. 

SAPS spokesman Sgt Christopher Spies told News 24 that on 24 July 2021 “provincial traffic officials conducted a roadblock when they stopped a truck which was travelling on the wrong side of the road”.

“They detected a strong cannabis odour and upon searching the vehicle found 2 500kg of dagga with an estimated street value of R5 million.”

Perhaps Shange should have been sentenced to 10 years for dangerous driving rather than transporting cannabis.  


Shange can’t count on Bill that would free him: it was shot down on the day he was sentenced

As it is he will anxiously be hoping for an early release in line with the proposed Cannabis for Private Purposes Bill, which would allow cannabis-related criminal records to be expunged and prisoners freed. But Shange is in a double-bind. The draft bill was vociferously shot down in Parliament and has been sent back to the drawing board. It is unlikely to become law anytime soon. 

But while he sits and waits, Shange, could also be considering his options. The Rastafarians are calling not only for cannabis prisoners to be released, but for financial restitution as well. They want to be paid compensation for the harassment they have endured. Shange may not only end up getting out of jail early, but he might also be lining up to sue the police as well!

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