Cannabiz Africa/Charl Henning, FGFA
FGFA says the latest SAPS “miscommunique” on how to deal with cannabis arrests runs foul of an earlier SAPS directive and that its instructions around dealing with minors runs foul of a Constitutional Court ruling.
Cannabiz Africa recently reported favourably on a legal communique from SAPS Gauteng’s legal department clarifying “dagga policing”. Whereas our perspective was that SAPS had been instructed to back off cannabis aggression and was doing so, Fields of Green for All spokesperson Charl Henning says this is all just smoke and mirrors, the persecution of cannabis users continues and the communique does not hold up legally.
Criticism has also come in from other quarters. One respected cannabis stakeholder told Cannabiz Africa that the communique simply reinforces the 2018 understanding of legislative changes:
“My take is that if you’re searched and have cannabis on you, despite the flowery language of good faith/personal discretion etc, SAPS officers have carte blanche to book and incarcerate you for 48 hours (or the weekend) pending a magistrate’s ruling. No quantities are specified so it’s a judgement call. If they 'judged' wrongly there’s no consequences for them. I think it just clarifies that you can do whatever you wish to do if you’re a cop.”
This is FGFA’s response to the SAPS statement:
The background for the communique “seeks to give clarity to the uncertainty of members in handling cases of possession of Dagga”, explaining also that section 14 of the Constitution makes section 4 (b) of the Drugs and Drug Trafficking Act 140 of 1992 unconstitutional, and that private consumption, possession, and use is allowed since the 2018 Constitutional Court Ruling.
While officers are directed to use their discretion in determining whether the quantity in possession – in private or on one’s person “in a private way” – no parameters nor guidelines are given. Indeed, the 2018 circular following the 2018 ConCourt Ruling, outlines in point 2.3 that “[t]he Constitutional Court does not specify the quantity of cannabis that will qualify as personal consumption”, something that is yet to happen several years later.
Interestingly, the communique states that the “discretion to arrest must be used in good faith, rationally and not arbitrarily”.
Our 24/7 victim support helpline STOP THE COPS (+27 63 174 0938) can attest just to how arbitrarily arrests against anyone participating in a relationship with the Plant can be meted out, only to be thrown out!
This communique further seems to run afoul of a 2019 General Directive sent out to all police stations and relevant heads. Section 8 states: “It is only in exceptional circumstances where a member is specifically authorised by an Act of Parliament […] to arrest a person without a warrant, that a person may be arrested without a warrant. Any arrest without a warrant, which is not specifically authorised by law, will be unlawful.”
Section 12 highlights that “[t]he detention of a person is a serious and humiliating infringement upon his or her freedom of movement and must be limited to the minimum period of time that may be necessitated by the interests of justice”.
Section 10 in the 2019 directive also outlines that officers “should refrain from arresting a person if their court attendance can be secured by a summons (section 54 of the Criminal Procedure Act 1977).
These points are further expounded in section 7.6 in the Cannabis Directive released in January of 2019: “If the police official is in doubt as to whether the quantity of cannabis found qualify as personal consumption, he or she must not arrest the person […] but should rather register a criminal case dockets and ensure that the person is brought to court by means of a summons or written notice”.
This section goes on to direct that “[i]f the prosecutor declines to prosecute the person […], the cannabis must be returned to the person from whom it was seized” under legal grounds, of course.
The 2019 Cannabis Directive pertinently highlights that it will ultimately “be the court that will decide whether the person possessed the cannabis for personal consumption or not”.
On that note, the losses incurred by police stations for unlawful arrests and seizures is quite considerable, as seen in “the service being ordered to pay millions of Rands in compensation for such persons”, discussed in the General Directive.
WHAT ABOUT THE CHILDREN?
Well, this is where the communique falls apart completely. The document claims that “the Prince Judgement made no mention of the possession of Dagga by a minor, therefore in law the possession of dagga for personal consumption by a minor whether private or public remain prohibited; therefore its a criminal offence”.
Now, the first problem here is that there are specific laws that govern minors and arresting officers are required to act in accordance with National Instruction 2 of 2010 – Children in Conflict with the Law – which the communique fails to mention.
The second issue we see here is blatant ignorance of the 2022 Constitutional Court Ruling that found that children and Cannabis is NOT a Criminal Justice issue. A report in GroundUp by Tania Broughton (September 2022) outlines that the ConCourt ratified a High Court order declaring sections of the Drugs and Drug Trafficking Act unconstitutional and that children should be kept out of the Criminal justice system, meaning that already convicted kids could start the expungement process.
The full ruling also outlines that section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 is “inconsistent with the Constitution and invalid to the extent that it criminalises the use and/or possession of cannabis by a child“, offering ratification to the findings by the High Court on the same matter.
This ruling does pertain directly to Cannabis not other drugs. This, however, highlights how persistently flawed our thugs in blue are in understanding and applying the relevant laws currently governing us Dagga Users. If they do not know the laws, how can abide by their so-called “discretion”?
SO, DO WE PANIC?
What we can assure you is that this is NOT what we are hoping for following the Cannabis Phakisa Action Lab, and that we are also still waiting for clarity and the many necessary updates on the processes underway.
If you see any more spurious rats creeping about like this one, be a curious cat and bring it to our attention so that we can figure out what is going on. In so doing, we can help keep us ALL as safe as humanly possible in a country where our thugs in blue apply their discretion all too arbitrarily.
If in doubt, ask yourselves: What Would Jules Do?
Phone that number!