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[2014] ZAWCHC 102
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Acton v Radebe N.O and Others (15793/13) [2014] ZAWCHC 102 (27 June 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 15793/13
DATE:
27 JUNE 2014
Reportable
In
the matter between:
JEREMY
DAVID
ACTON
............................................................................
Applicant
And
JEFFREY
THAMSANQA RADEBE N.O
.......................................
First
Respondent
DIRECTORATE
OF PUBLIC PROSECUTIONS
....................
Second
Respondent
THE
MAGISTRATE FOR MONTAGU, WC
..............................
Third
Respondent
JUDGMENT
DELIVERED ON 27 JUNE 2014
BOQWANA,
J
Introduction
[1]
This
case
concerns
an application for stay of prosecution of all cases involving persons
facing charges of possession of and dealing in dagga.
The complete
order sought by the applicant specifically reads as follows:
‘
1.
That
matters in the Montagu Magistrate’s Court for which he is being
accused on charges of possession of dagga, be postponed
pending the
outcome of a High Court application and/or action, and of possible
appeals thereto, to be instituted by the applicant
against the
respondents, in which action the applicant challenges the
constitutionality of certain provisions of the Illicit Drugs
and
Trafficking Act
(sic)
,(Act
140 of 1992)and in addition, certain provisions of the Medicines and
Related Substances Control Act
(sic),
(Act
No 101 of 1965)and in particular in so far as these acts deal with
the uses and possession of, and dealing in dagga, and the
presumptions that arise in respect of possession thereof;
2.
That
unless the applicant institutes the aforesaid action within 60 days
from date of this order, the order will automatically lapse
and the
respondents will be entitled to proceed with the criminal action
against the applicant;
3.
That
unless the respondents oppose this application, the applicant will
not ask for costs of this application against the respondents;
4.
That
the rights granted in the legal precedents cited in this application,
which are claimed by the Applicant, and which are rights
of all
citizens, may be also extended by this order to enable the
postponement of all cases involving citizens facing charges of
possession of, or dealing in, dagga, in application of the right of
citizens to equal benefit before the law, in terms of Section
9
Equality of the Bill of Rights...’
[2]
The
respondents did not oppose prayers 1to 3 of the notice of motion
which solely dealt with the stay of the applicant’s own
prosecution for charges he faced in the Montagu Magistrates Court.
The second respondent however opposed prayer 4 which involved
all
cases involving other citizens facing charges of dealing in or
possession of dagga. The applicant appeared in person and upon
consideration of the application on 18 March 2014, the Court granted
relief sought under prayers 1 to 3, as amended and postponed
the
remainder of the application for the appointment of the
amicus
curiae
and to afford the applicant an opportunity to obtain legal
representation. It was the Court’s view that although the
applicant
had attempted to draft his own papers and heads of
argument, he was unable to assist the Court to properly adjudicate
the matter.
The Cape Bar appointed Advocate S Van Zyl as
amicus
curiae
upon the Court’s request. The applicant however advised the
Court that he was unable to obtain legal representation and wished
to
continue appearing in person.
Issue
before the Court
[3]
At
the outset it is important to state what this case is not about. The
Court in this application is not called upon to decide on
the
constitutionality of the impugned provisions of the Drugs and Drug
Trafficking Act
[1]
(‘Drugs
Act’) and the Medicines and Related Substances Act
[2]
(‘Medicines
Act’).
[4]
That
inquiry sits in another court or other courts where the applicant
and/or various other individuals have issued summons or intend
to do
so, challenging the constitutional validity of the prohibition of
dealing in or possession of dagga.
[5]
In
this application, the Court has to determine whether the remedy
sought by the applicant is competent and appropriate in the
circumstances and whether the applicant has made out a case that
entitles him to such an order.
[6]
In
essence the issue is whether a blanket stay of prosecution of all
cases of persons charged with use or possession of dagga in
contravention of sections 4(a) and (b) and section 5(b) of the Drugs
Act and S22A of the Medicines Act read with Schedule 8 of
the
Medicines Act and Section 40(1) (a) of the Criminal Procedure Act
[3]
can be granted pending an outcome of the constitutional challenge of
these provisions.
Factual
background
[7]
The
applicant is a self-proclaimed regular user of dagga and an activist
involved in various activities promoting the use of and
legalisation
of dagga. He professes to smoke, eat and to use dagga for its medical
benefits and as part of his own personal spiritual
beliefs and
practises. He also describes himself as a small scale farmer and an
activist in various formations and most notably
as the leader of the
Dagga Party of South Africa, also known as iQela Lentsangu. He states
that he has done extensive research
on the medical and economic
benefits of dagga which he alleges could be beneficial to the South
African economy and citizenry at
large.
[8]
The
applicant first appeared before the Montagu Magistrate’s Court
on charges of possession of dagga during the period of
March to May
2011. He apparently brought an application similar to this before
Weinkove AJ in 2012 which was struck from the roll.
His application
for leave to appeal and subsequent petition to the Supreme Court of
Appeal (“SCA”) were refused. All
the charges against him
were withdrawn by the prosecutor on 30 November 2012.
[9]
One
of the charges was however re-instated on 28 August 2013. I was
concerned about whether or not the issue raised in prayer 1
had not
been decided by Weinkove AJ. I am however satisfied that the stay of
prosecution sought in the current application related
to the
re-instated charge of August 2013.
[10]
The
applicant seems to challenge the general prohibition of dagga. He
contends the following in his ‘motivating affidavit’:
‘
the
illegality o
f
Cannabis is unconstitutional and therefore invalid, and that, in the
interest of human rights and Justice, there is good reason
for the
High Court and Constitutional Court to reconsider the facts about
Dagga (Cannabis sativa) and to find that the prohibition
of Cannabis
must come to an end’
[11]
The
status of the action proceedings is unclear save to state that the
applicant submitted a copy of the summons he instituted against
the
government in 2012 together with various other plaintiffs. In their
particulars of claim the applicant and others list various
fundamental rights which they claim have been infringed.
Discussion
[12]
The
applicant cites a number of cases where orders staying prosecution of
individual criminal matters were granted
[4]
,
which he uses as a basis to support his case. Recently, a number of
individuals facing prosecutions for use and/or possession
of dagga
have apparently been applying for stay of their individual
prosecutions in various courts pending the outcome of the actions
they brought or were seeking to bring in various High Courts
challenging the constitutionality of the impugned Drugs Act and the
Medicines Act provisions.
[13]
The
applicant contends that the granting of those orders staying
prosecution established legal precedent which, as of right, should
be
extended to ‘all citizens facing prosecution for use and
possession of dagga’ by application of section 9 of the
Bill of
Rights.
Legal
standing
[14]
The
relief sought by the applicant extends far beyond his direct and
substantial interest. He brings an application on behalf of
other
citizens who have not authorised him to act on their behalf. The
applicant does not deal with the basis of bringing an application
on
behalf of others in his founding affidavit. It can be deduced from
his papers that this application is intended to be brought
in terms
of section 38(c) of the Constitution
[5]
which provides that:
‘
Anyone
listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has been
infringed or
threatened, and the court may grant appropriate relief, including a
declaration of rights. The persons who may approach
a court are –
....
(c)
anyone acting as a member of, or in the interest of, a group or class
of persons.’
[15]
Section
38(c) recognises a class action specifically in relation to
infringements of or threats to rights guaranteed in the Bill
of
Rights.
[6]
A number of
decisions, most recently the SCA decision of
Children’s
Resource Centre Trust and Others v Pioneer Food (Pty) Ltd and
Others
[7]
and
the Constitutional Court judgment of
Mukaddam
v Pioneer Foods (Pty) Ltd and Others
[8]
,
have
determined the
requirements
of what an
applicant
should show when bringing a class action, and in particular whether
certification is required
.
In
Children
Resources
the SCA set out some prerequisites which ought to be met to certify
an action as a class action before issuance of the summons,
which are
inter alia: the class on whose behalf the action is brought must be
identifiable; the applicant must show that the class
has a cause of
action which results in a triable issue; the various claims must
raise common issues of facts and law; the representative
in whose
name the class action is brought must be identified; his interest as
a representative must not be in conflict with those
of the members of
the class; and he/she must have the capacity to prosecute the class
action including having the necessary funds.
The Constitutional Court
held in
Mukaddam
that
these requirements should not be rigidly applied. The key
consideration would be what the interests of justice require in a
particular case.
[9]
The majority
decision of the Constitutional Court seemed to suggest that where
relief is sought against the state, certification
was not required.
In this regard Jafta J held as follows:
[40]
What is said in this judgment about certification that must be
obtained before instituting a class action
must
not be construed to apply to class actions in which the enforcement
of rights entrenched in the Bill of Rights is sought against
the
state. Proceedings against the state assume a public character which
necessarily widens the reach of orders issued to cover
persons who
were not privy to a particular litigation. Class actions in those
circumstances are regulated by s 38 which confers,
as of right, the
authority to institute a class action on certain persons, defined in
the section. Moreover, claims for enforcing
rights in the Bill of
Rights may even be brought in the wider public interest without
certification.
(Own
underline)
[16]
The
Court however left open the question of whether institution of a
class action to enforce a right in the Bill of Rights against
a
private litigant required prior certification.
[10]
[17]
Mhlantla
AJ however held a different view to that of the majority on this
issue. She expressed a view that given the rationale and
the benefits
of the certification process, she saw no reason, in principle or
practise, for mandating certification in some class
actions and not
others.
[11]
Mhlantla AJ also
recognised that the certification process is also significant in
protecting the interests of persons whose rights
may be extinguished
by the outcome of the class action. The right of the members of a
class to raise the dispute again might be
limited by the application
of the
res
judicata
principle.
[12]
[18]
The
applicant in this matter has not brought an application to consider
certification of a class action. Even if certification was
not a
requirement in the present circumstances, members of the class that
the applicant seeks to represent in this application
must be clearly
defined. The group of people, defined in prayer 4 as ‘all
citizens facing charges of possession of, or dealing
in dagga’
is too broad. An order of the kind sought by the applicant has a
potential to bind not only citizens whose cases
are pending in the
magistrate courts, but also those who may still face charges or are
arrested for possession of or dealing in
dagga. This is so because
every time a person is arrested his or her case would have to be
stayed pending the outcome of the constitutional
challenge. Some of
these citizens might want to have their cases speedily dealt with.
Some might wish to challenge the charges
for reasons different to
those of the applicant.
[19]
The
applicant has a further hurdle to overcome in that he has to show
that a right entrenched in the Bill of Rights has been infringed.
S
ection
38 (c) allows a class action in relation to infringement of rights
guaranteed in the Bill of Rights.
Stay
of Proceedings
Has
a right in the Bill of Rights been infringed?
[20]
The
applicant mentions in prayer 4:
‘
that
the
rights
granted in the legal precedents cited in this application, which are
claimed by the Applicant, and
which
are rights of all citizens
,
may be also extended by this order to enable the postponement of all
cases involving citizens facing charges of possession of,
or dealing
in, dagga,
in
application of the right of citizens to equal benefit before the law,
in terms of Section 9 Equality of the Bill of Rights
’
(Own emphasis)
[21]
The
first issue is that the granting of a stay of any Court proceedings
is not a right but a matter of discretion exercised by the
Court
based on individual circumstances and the merits of a particular case
before it.
[13]
In
Sanderson
v Attorney-General, Eastern Cape
[14]
where a stay of prosecution was sought on the ground that there had
been an unreasonable delay in the prosecution, the Court found
that:
‘
the
relief the appellant seeks is radical, both philosophically and
socio-politically. Barring the prosecution before the trial
begins --
and consequently without any opportunity to ascertain the real effect
of the delay on the outcome of the case -- is far-reaching.
Indeed it
prevents the prosecution from presenting society's complaint against
an alleged transgressor of society's rules of conduct.
That will
seldom be
warranted
in the absence of significant prejudice to the accused.
....A
bar is likely to be available only in a narrow range of
circumstances, for example, where it is established that the accused
has probably suffered irreparable trial prejudice as a result of the
delay.
[15]
’
[22]
Although
the issue in the
Sanderson
case was different, the principles enunciated in that decision find
application in the present matter. Th
e
granting of the stay of proceedings will seldom be warranted in the
absence of significant prejudice to the accused. Most importantly,
proceedings are stayed by the Courts in the exercise of their
discretion based on the merits of a particular case not by
application
of a general rule, which discretion is exercised
sparingly and in exceptional circumstances.
[16]
[23]
Flowing
from the above, it is clear that the granting of a stay by a single
judge in one division cannot establish legal precedent
binding on all
divisions as is suggested by the applicant in prayer 4 of his notice
of motion. Such order could at best have persuasive
force in the
consideration of similar matters. Furthermore, the fact that the
respondents chose to abide by the Court’s decision
in various
applications for stay of prosecution, brought by the individuals in
cases the applicant has cited, including his own,
does not give rise
to legal precedent and to a right. There is no such right entrenched
in the Constitution.
[24]
The
applicant attempts to locate this right under the equality clause,
i.e. section 9 of the Bill of Rights. There are no averments
in the
founding papers to substantiate these claims. There is no indication
who violated these rights, and when and how those rights
were
violated. It is also not clear whether or not what is being
challenged is the decision of the second respondent to prosecute
for
the infringement of the impugned provisions in contravention of
section 9 of the Constitution.
In
Minister
of Safety and Security v Sekhoto and Another
[17]
,
the
court held that: ‘
a
party who alleges that a constitutional right has been infringed
bears the onus.
The
general rule is also that a party who attacks the exercise of
discretion where the jurisdictional facts are present bears the
onus
of proof. This is the position whether or not the right to freedom is
compromised. For instance, someone who wishes to attack
an adverse
parole decision bears the onus of showing that the exercise of
discretion was unlawful. The same would apply when the
refusal of a
presidential pardon is in issue.
’
[18]
[25]
I
am in agreement with Bokaba SC who appeared for the second respondent
that in order for the Court to extend any right to the persons
the
applicant claims to represent, the Court must find that there has
been discrimination in violation of section 9 of the Bill
of Rights.
No averments have been made at all regarding any discrimination in
support of prayer 4. Be that as it may, I have found
that stay of
prosecution, whether by a Court, or at the decision of the second
respondent, is discretionary having regard to the
particular
circumstances of a case and does not constitute a right in terms of
the Constitution.
The
effect of staying all prosecutions
[26]
The
relief sought is also incompetent for various other reasons, the most
important being the effect that the granting of such an
order would
have. The second respondent contends that the order prayed for would
effectively lead to the immediate decriminalisation
of dagga, this
being in the face of a Constitutional Court decision that confirmed
the validity of the impugned provisions.
[19]
In the
Prince
matter at paragraphs 139 to 142 the majority of the Constitutional
Court held that:
‘
[139]
The use made of cannabis by Rastafari cannot in the circumstances be
sanctioned without impairing the state’s ability
to enforce its
legislation in the interests of the public at large and to honour its
international obligation to do so. The failure
to make provision for
an exemption in respect of the possession and use of cannabis by
Rastafari is thus reasonable and justifiable
under our Constitution.
...
[142] . . .
The granting of a limited exemption interferes materially with the
ability of the state to enforce its legislation,
yet, if the use of
cannabis were limited to the purpose of the exemption, it would fail
to meet the needs of the Rastafari religion.’
[27]
The
effect of the stay sought would bring to a halt all prosecutions and
suspend the application of the impugned provisions, which
would
effectively amount to a moratorium being placed on all
investigations, arrests, prosecutions, and criminal and ancillary
proceedings arising out of any alleged contraventions of the
provisions of the Drugs Act and the Medicines Act, and would be to
prevent the State from carrying out its obligations. This would not
be a desirable situation. In the decision of
S
v Basson,
[20]
the Constitutional Court observed that criminal law plays an
important role in protecting constitutional rights and values in our
constitutional state. The Constitution obliges the state to prosecute
offences and this duty to prosecute crime is placed on the
state in
terms of section 179(2) which provides that: ‘The prosecuting
authority has the power to institute criminal proceedings
on behalf
of the state, and to carry out any necessary functions incidental to
instituting criminal proceedings’
[28]
Chapter
5 of the Criminal Procedure Act
[21]
also
makes it plain that the purpose of arrest is to bring suspects before
court for trial. It would serve no purpose for police
officers to
arrest people who may not be prosecuted pending the outcome of the
constitutional challenge, which may or may not favour
the applicants.
The
order the applicant seeks would in my view not only bind the Courts
but it would also prevent the second respondent and the
police from
executing any prosecutions or arrests
arising
out of any alleged contravention of the impugned provisions of the
Drugs Act and the Medicines Act
.
What the applicant seeks cannot be done without the Court having
declared the impugned provisions unconstitutional, which is not
the
issue before this Court. Furthermore the Constitutional Court would
have to confirm such an order. Legislation would
also need to
be changed by Parliament after such pronouncement has been made. In
the matter of
Teddy
Bear Clinic for Abused Children and Another v Minister of Justice and
Constitutional Development and Another
[22]
,
the
Constitutional Court restated this principle when it declared
sections 15 and 16 of the
Criminal
Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
to
be unconstitutional. It stated that justice and equity warranted that
the invalidity of these provisions be suspended for 18
months in
order to allow Parliament to remedy the defects in the statute. The
Court further ordered a moratorium on all investigations
into,
arrests of, and criminal and ancillary proceedings against,
adolescents in relation to sections 15 and 16 of the Sexual Offences
Act, pending Parliament’s remedying of the defects in the
statute.
[29]
Ngcobo
J, who wrote the minority decision in the
Prince
matter raised the danger that would be posed by the immediate
declaration of invalidity of the provisions of section 4(b) of the
Drugs Act and section 22A(10) of the Medicines Act even if an
exemption was granted for dealing in dagga for religious
purposes.
[23]
[30]
It
follows therefore that the relief sought by the applicant in prayer 4
is not competent for reasons discussed above and even if
it were, it
is premature and does not follow the sequence followed by the
Constitutional Court in various decided cases.
Jurisdiction
[31]
The
applicant argued that this Court had powers to grant an order which
will affect areas beyond its jurisdiction, by virtue of
the
provisions of the Superior Courts Act,
[24]
which according to him created one High Court. His argument seems to
be based on section 6 of that Act which deals with the restructuring
of the Court system. In terms of Section 6 of the Superior Courts
Act, High Courts are now essentially restructured in a manner
in
which they become High Court divisions and in each division, if there
is more than one existing court, one will become the main
seat with
jurisdiction over the whole province, and the others will become
local with jurisdiction over a restricted area.
[32]
Section
6 of the Act merely provides for the restructuring of the courts, and
does not amend the jurisdiction of the Superior Courts,
in my
view.
[25]
By reason of my
findings above, I find it not necessary to decide on this point.
Conclusion
[33]
In
conclusion, the relief sought by the applicant is incompetent for the
reasons outlined above, namely, the applicant lacks legal
standing,
stay of proceedings does not qualify as a right enshrined in the
Constitution, the suspending of prosecution will have
a negative
effect, for the reasons outlined above, on the work of the
prosecution authorities, and suspension of the application
of the
impugned provisions, i.e. decriminalisation of dagga, cannot take
place before the sections dealing with the possession
of or dealing
in dagga have been held to be inconsistent with the Constitution.
[34]
The
second respondent has also not asked for costs, rightly so in my
view. It would not have been in the interests of justice to
award
costs against the applicant in this matter.
[35]
In
the result I make the following order:
The
application is dismissed.
N
P BOQWANA
Judge
of the High Court
APPEARANCES:
For
the Applicant: In person
For
the Second Respondent: Advocate T J B Bokaba SC with S Poswa –
Lerotholi
Instructed
by:State Attorney, Cape Town
Amicus
Curiae
:
Advocate S Van Zyl
[1]
Act No. 140 of 1992
[2]
Act No. 101 of 1965.The previous name was
substituted by s28 of Act 90 of 1997
[3]
Act No. 51 of 1977
[4]
Examples
of those matters as cited by the applicant are:
Gareth
Anver Prince and 2 Others v Magistrate NP Venter N.O. and the
Directorate of Public Prosecutions, Case Number: 3298/13;
Gareth
Anver Prince and 2 Others v Magistrate McKenna N.O. and the
Directorate of Public Prosecutions, Case Number: 20996/12);
Manelek
Barend Abraham Wenzel, Case number 8658/13,
all
from this division and
Stobbs
and Myrtle Clarke Case number 27601/11
from
the North Gauteng High Court.
[5]
Act
108 of 1996
[6]
Children’s Resource Centre Trust and Others
v Pioneer Food (Pty) Ltd and Others
2013 (2) SA 213
(SCA) at
paragraph 19
[7]
Children
Resource Centre supra
[8]
2013
(5) SA 89 (CC)
[9]
Mukaddam
supra at paragraphs 34 to 39
[10]
Mukaddam
supra at paragraph 41
[11]
Mukaddam
supra at paragraphs 59
[12]
Mukaddam
supra at paragraph 62
[13]
See
Brown
v National Director of Public Prosecutions & Others
[2012]
1 All SA 61
(
WCC) at paragraphs 21 to 24
[14]
1998
(2) SA 38
(CC)
[15]
Sanderson
supra at paragraph 38 – 39.
[16]
Brown
v National Director of Public Prosecutions & Others
[2012]
1 All SA 61
(
WCC) at paragraph 23
[17]
2011
(1) SACR 315 (SCA) ; [2011] 2 All SA 157 (SCA); 2011 (5) SA 367
(SCA)
[18]
Minister of Safety and Security supra at
paragraph 49
[19]
Prince
v President, Cape Law Society and Others 2002 (2) SA 794 (CC).
[20]
2004
(6) BCLR 620 (CC).
[21]
Act No. 51 of 1977
[22]
(12)
BCLR 1429 (CC);
2014 (2) SA 168
(CC);
2014 (1) SACR 327
(CC)
[23]
See Prince v President of the Law Society supra
at paragraphs 86 and 87 read with footnote 83
[24]
Act No. 10 of 2013
[25]
Jurisdiction of the High Courts is regulated by
section 21 of the Superior Courts Act