High Court rejects bid to declare cannabis possession law unconstitutional

AN attempt to have a section of the law criminalising the possession of cannabis declared unconstitutional has failed in the Windhoek High Court.

“I find nothing compelling in the case of the applicant to justify a finding that section 10 of the Abuse of Dependence-Producing Substances and Rehabilitation Centres Act of 1971 must be declared unconstitutional,” deputy judge president Hannelie Prinsloo stated in a judgement delivered on Friday.

Prinsloo dismissed an application in which Keetmanshoop resident Juvani Swartbooi asked the court to declare that the section of the act that says someone found in possession of more than 115g of cannabis is presumed to have dealt in that cannabis, unless it is proven that the person did not deal in it, is unconstitutional.

Swartbooi claimed that presumption in the law is unconstitutional because it infringes on his right to be presumed innocent until proven guilty and on his right to a fair trial.

He also claimed the presumption that someone found in possession of more than 115g of dagga deals in cannabis “is illogical and does not have any justifiable rationale”.

Under the act, someone convicted of dealing in cannabis can be sentenced to stiffer fines and longer terms of imprisonment than someone found guilty of possession of dagga.

A similar section in South Africa’s Drugs and Drug Trafficking Act of 1992 was declared unconstitutional by the South African Constitutional Court in 1995.

Swartbooi was found guilty in the Lüderitz Magistrate’s Court of dealing in cannabis and was sentenced to 12 months’ imprisonment in April 2021.

He had been found in possession of 241g of dagga, valued at about N$2 500, at Lüderitz in February 2020.
Swartbooi pleaded guilty to the charge he faced.

When questioned by the magistrate that dealt with his case, he admitted that he possessed 241g of cannabis, and said he had stolen the dagga from a drug dealer at Keetmanshoop and planned to sell it.

In March 2022, Swartbooi filed an application against the attorney general, the prosecutor general and the government in the Windhoek High Court to have the presumption in the 1971 act declared unconstitutional.

He has also has lodged an appeal against his conviction and sentence.

In her judgement, Prinsloo noted that Swartbooi pleaded guilty and clearly expressed his intention to deal in cannabis when he was questioned by the magistrate.

“The court convicted him based on his unequivocal admission of all the elements of the offence,” Prinsloo said.

For someone to be found guilty in terms of the section of the law that Swartbooi challenged, the prosecution must prove beyond a reasonable doubt that they were found in possession of a dependence-producing substance and that the substance was at least 115g of cannabis, Prinsloo said as well.

“The accused himself confirmed that he indeed wanted to sell [the cannabis], thus providing a clear expression of intent, which is the core element to be proven,” she said.

She also remarked that it is not disputed that the abuse of drugs is a social evil which the parliament sought to control, and that despite the existence of anti-drug laws “such laws have not been very effective in curbing this social ill”.

What the legislature wished to achieve with the law is clear from the language used in the preamble of the act, which is to provide for the prohibition of the dealing in and use or possession of dependence-producing drugs, Prinsloo said.

Through Swartbooi’s admissions, his guilt was fully established, she added, before saying she found nothing compelling in his case to justify a finding that the section of the law that he attacked must be declared unconstitutional.

Swartbooi was represented by Ankia Delport in his application.

The attorney general, prosecutor general and government were represented by John-Paul Jones.

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