What Will the Constitutional Court Say About Weed Legalisation?

(Originally published 2019)

Constitutional Court Judgement on Weed Legalisation?

Tomorrow, the Justices of the Constitutional Court will tell us whether Judge Dennis Davis‘s 31 March 2017 judgement was the next step to weed legalisation, or whether they’ll stop legalization in its tracks.

When that judgement came out, everybody wrongly assumed that weed would be legal that day. Together with our friends, The Dagga Couple, we warned that this was not the case. That was merely a step in the right direction and tomorrow, we’ll be faced with the next step.

Weed Legalisation and South African Policy:

Politically, South African policy-making is split 3 ways between the judiciary (courts), the legislature (parliament) and executive (president and his choms). Each of those parties enjoy an awkward mix of independence from and oversight over the other two. To this end, the courts can’t exactly tell the legislature how to make laws.

They can, however, tell the legislature that their laws are wrong, but not exactly how to make the right. It’s weird, I know, but the example I love using is marriage equality; when the Marriage Act was determined to be unconstitutional because it limited marriage to between a man and a women (thereby infringing on sexual equality rights), we all thought it would be a no-brainer that the legislature would simply amend the Marriage Act to mention that marriage is between two people.

That’s not exactly what we got though. Instead, we got a totally separate Act (Civil Unions Act) which was open for anybody to marry under. Thus despite having two acts, the equality was (arguably) met.

Tomorrow will be interesting for a number of reasons:

Firstly, this judgement is only one of two left outstanding since 2017. In fact, it was rigorously argued in November last year and as there have been judgements released from much more recently, I’m assuming that there wasn’t an absolute consensus (My money is on Deputy Chief Justice Zondo and Justice Froneman, possibly more). The differing views will offer a rich addition to the jurisprudence relating to governmental responsibility, individual liberty and the relationship between the two.

Secondly, if the smart money is right, and the Constitutional Court certifies last year’s Davis judgement, it will be the last court case on the issue.

In our modern constitutional dispensation, this case has taken over twenty years to get to this point and it is not the first time, the Court will pass judgement Mr. Prince; he famously lost a similar case in 2000 but this time it’s different. Times are changing and the arguments presented canvassed a far wider array of issues.

Basically, we’re pretty confident that the ConCourt is going to certify the Davis judgement and, as a result, the final stages of legalization will be set in motion.

That doesn’t mean that weed will be legal tomorrow though.

A pro-weed judgement tomorrow will only compel the legislature to review the law criminalizing the plant. As we’ve seen and as I’ve shown above, the legislature can do some weird things to remedy this. Unfortunately, we’ll only know what the parameters are when we receive the judgement and the reasons contained therein.

Weed Legalisation may not Be Legalised:

It may well be that the Justices of the Constitutional Court agree with Davis’s outcome but get there based on different (and probably differing) reasons.

There’s a chance they may not agree with Davis at all. If they don’t, that’s it. Weed will not be legalized through the court-legislature combination and stoners will have to hope that the Dagga Party isn’t too late to register for the 2019 elections.

If, however, the ConCourt is in favour of legalization, and simply confirm the Davis judgement, that will leave the legislature until 31 March 2019 to legalize weed (or at least do something to comply with whatever the judgement will declare needs fixing). However, the Justices are likely to be alive to the fact that we’re heading into an election cycle and that the 31 March 2019 deadline may be too ambitious. That way, they may grant an extension of the deadline to the legislature.

The judgement tomorrow therefore will not be the last step in legalizing weed but it may be the last step in blocking it. If it is a step in the right direction, then it will merely be that; another important part of the lengthy process which could see weed being legal by 31 March 2019 although likely later.

What do you think?

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