How to avoid a criminal conviction for dagga use

13 August 2017 - 11:05 By Katharine Child
Dagga legalisation law marijuana gavel
Dagga legalisation law marijuana gavel
Image: Gallo Images/ IStock

More than 100 people arrested for the possession of dagga have had their prosecutions put on hold‚ while the case to have the laws banning dagga struck down is ongoing.

Those with a stay of prosecution preventing a conviction for dagga possession include people in their sixties‚ students and people using cannabis oil for medical reasons.

Johannesburg residents Jules Stobbs and Myrtle Clarke have asked the Pretoria High court to rule that the laws limiting the adult use and sale of dagga are unconstitutional. The case is being heard until August 25 and then is likely to be postponed until next year for completion.

Until this case is finalised people arrested for using dagga can ask the high court for a stay of prosecution to prevent conviction.

This is done using some of the case documents of Clarke and Stobbs‚ who have a stay of prosecution themselves.

In 2010‚ the pair nicknamed the #daggacouple were arrested with 1.87 kilograms of dagga in their home near Lanseria airport‚ after police broke down the door.

Their criminal trial for possession and dealing in dagga with a maximum of a 12-year jail sentence is now on hold.

Those arrested for dagga possession can contact NGO "join the queue" where Capetonian Charl Henning helps them apply to the high court for a stay of prosecution.

Henning said: “It takes a few weeks and a few thousand rand to cover the cost of printing documents and repeated trips to a high court to arrange a stay of prosecution.”

But many people who call him have already been arrested for dagga use and signed "admission of guilt" forms in order to be released from police custody. This gives them a criminal record and he is unable to help them.

Some people phone him just to talk about the trauma of arrest and he never hears from them again. "You never forget the smell of urine after being held in a cell‚" said Stobbs.

Henning and Stobbs say they frequently hear from young people who didn’t realise when signing an admission of guilt form they would be given a criminal record‚ which they only discover when applying for a job or an overseas visa.

Henning said: "people are often arrested on a Friday night and then held all weekend until they can appear in court on Monday morning."

In order to arrange a stay of prosecution‚ Henning helps the arrested dagga user serve papers on the police‚ the National Prosecuting Authority and the court asking for a stay of prosecution.

"It's a huge bundle of papers." It takes about three weeks for a response and a few visits to the court to ensure one receives the response. Then a person is called to appear before a judge and has a stay granted.

More often than not the appearance is in the divorce court‚ said Henning.

Some of the people who have called him for help include a university student who was studying for exams when police with a search warrant entered his hostel at 6am.

He told Henning: “Apparently we were accused of being dealers while we are only peace loving stoners. They raided the rooms while my friends were sleeping‚ calling my friend out on his mental restrictions. They arrested them when they found dagga seeds in room.

"My one friend missed a test [due to arrest]. Dealing with this right before the exams is completely unnecessary." Another person was arrested while delivering cannabis oil to his mother who has cancer.

Some people claim they had dagga planted on them by cops‚ but Henning cannot deny or prove such claims.

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