Dagga laws are ‘racist and irrational’‚ court told

14 August 2017 - 18:03 By Katharine Child
Marijuana plants. File photo
Marijuana plants. File photo
Image: Paula Bronstein

The South African law banning the smoking and cultivation of dagga is racist‚ unscientific and not rational or based on good law making.

This was the testimony of historian Craig Paterson who works at Rhodes University. His master's thesis investigated how the colonial laws criminalising dagga use came about.

He is a witness in the trial brought by Myrtle Clarke and Jules Stobbs asking that the laws banning the sale of dagga be ruled unconstitutional‚ as they are irrational and do not serve their purpose of minimising harm.

Paterson's thesis finds cannabis or dagga was "widely used" before colonial times.

He told the Pretoria High Court that it was easier to ban dagga‚ officially in 1922‚ than alcohol because it was only used by Indian‚ coloured and black people at the time.

He said historical evidence shows alcohol caused more social ills and crime but was not banned because it was used by white people.

“Alcohol was the real issue for the government‚ so we have to ask why they chose to ban cannabis and not take the same [line] with alcohol. The only rational conclusion I could come to is white people didn't smoke cannabis.”

Paterson studied how the ban came about and said one of the first reasons dagga use was halted was because it affected the quality of Indian labourers’ work in the province of KwaZulu-Natal in the 19th century.

State advocate Bogosi Bokaba SC was aggressive in his cross examination of Paterson and said the historical reasons for the law criminalising dagga were not relevant today.

Bokaba said: "It is our view that the history that you specified around dagga use is irrelevant for the issues that are involved today. Do you agree?"

Paterson said that is for the court to decide whether the history behind the laws mattered.

Bokaba spent almost an hour trying to get Paterson to comment on criminal and medical issues‚ linked to dagga and even read out lists of symptoms associated with dagga use.

He asked Paterson if he agreed with the medical symptoms‚ such as red eyes‚ linked to the use of dagga.

"I am an historian. I am not sure why I am being asked these questions as an historian‚" replied Paterson.

Bokaba asked Paterson if he believed dagga should be legalised‚ to which he responded: "It is not a question for historians to answer."

Bokaba also twice asked Paterson why he didn’t refer to the Timbuktu manuscripts.

Paterson was incredulous when he answered: "Because my thesis starts at [the year] 1850 and they are entirely irrelevant [ to my thesis]".

Doctors for Life advocate Mpati Qofa asked Paterson for evidence for his views that the dagga ban was irrational‚ unreasonable and unscientific. He answered that his "entire thesis" supported the view.

She asked him repeatedly for statistics for the number of people who smoked cannabis before the colonial government.

He said there could be no number as there was no evidence of censuses conducted at that time.

"We don’t even know how many people there were then."

She then asked if he could provide a simpler way of explaining how dagga was "widely used" pre-colonial times‚ but he said that statement "widely used" best described it.

Qofa also told him he was not a scientist and therefore could not conclude that decisions made in the last century on dagga were unscientific. Paterson disagreed: “I can talk about science of the time. It [dagga ban] was based on social Darwinism. It is now well accepted that was bad science."

She concluded her cross examination by asking him how many people smoked dagga in South Africa today. He said that it would be hard to say‚ as people do not admit to doing something that is criminal.

The case is adjourned until Wednesday.

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