Dagga at home now legal in SA

Does the court have the authority to do so?

This is, after all, legislated and as far as I know a court cannot just scrap a piece of legislation.

If the court indeed made an error, who would be the body appealing the decision?

In the end I suppose that it is essentially a decision about constitutionality. Can a lower court make constitutional judgements?

The short answer is that if a High Court (in earlier times, called the Supreme Court), invalidates law or conduct by reason of the Constitution, the invalidation has to be confirmed by the Constitutional Court. Pending such approval, temporary arrangements can be made by such court.

The Constitution provides in badly drafted terms as follows as follows:

169. High Courts

A High Court may decide ­

    a. any constitutional matter except a matter that ­

       i. only the Constitutional Court may decide; or

       ii. is assigned by an Act of Parliament to another court of a status similar to a High Court; and

    b. any other matter not assigned to another court by an Act of Parliament.

170. Magistrates' Courts and other courts

Magistrates' Courts and all other courts may decide any matter determined by an Act of Parliament, but a court of a status lower than a High Court may not enquire into or rule on the constitutionality of any legislation or any conduct of the President.

...

172. Powers of courts in constitutional matters

1. When deciding a constitutional matter within its power, a court ­

   a. must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and

   b. may make any order that is just and equitable, including ­

      i. an order limiting the retrospective effect of the declaration of invalidity; and

      ii. an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect.
 

 

2.  a. The Supreme Court of Appeal, a High Court or a court of similar status may make an order concerning the constitutional validity of an Act of Parliament, a provincial Act or any conduct of the President, but an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court.

     b. A court which makes an order of constitutional invalidity may grant a temporary interdict or other temporary relief to a party, or may adjourn the proceedings, pending a decision of the Constitutional Court on the validity of that Act or conduct.

    c. National legislation must provide for the referral of an order of constitutional invalidity to the Constitutional Court.

    d. Any person or organ of state with a sufficient interest may appeal, or apply, directly to the Constitutional Court to confirm or vary an order of constitutional invalidity by a court in terms of this subsection.


173. Inherent power

The Constitutional Court, Supreme Court of Appeal and High Courts have the inherent power to protect and regulate their own process, and to develop the common law, taking into account the interests of justice.

...

In evaluating the judgement, the question is how reliable Shaw's report is:

In a 66-page joint judgment of a full Bench of the court, penned by Judge Dennis Davis, it was found that not only was the medical evidence presented on behalf of the ministers of justice, police, health and the National Prosecuting Authority contested, but they also “offered very little further evidence of persuasion and weight to counter the report by Professor [Mark] Shaw”.

The report was an expert opinion by Shaw of the Centre of Criminology at the University of Cape Town.

Shaw was asked to provide the report because the applicants, Gareth Prince and Jonathan Rubin, had filed a “considerable amount” of documentation that was of “little assistance”.

www.news24.com/SouthAfrica/News/dagga-judgment-is-quite-rad-20170401

What also interests me is how the report found its way into the court. Did Davis go hunting for a report in University where he is also a prof



Not really relevant here but I found this little gem:

Davis, who began teaching almost 40 years ago, said during his presentation law education needed an upgrade. “Constitutional law is taught appallingly throughout this country. I know this because as a judge I need to listen to arguments (in court). We have a poverty of intellect of the highest order. The crap published in law journals is so abominable in relation to the debate we should be having.”

Open letter: ‘Judge Davis’ reckless dagga judgment undermines democracy’

The judge made multiple procedural and interpretative decisions to unfairly help the applicants’ very weak case.  As Davis himself states, the applicants had failed to even clearly state what they wanted the court to do

...

The judge gives parliament 24 months to rewrite drug law to allow home use of dagga. During that time, the matter can and should be appealed to the Constitutional Court – and the legislature also has the alternative of convening the Constitutional Assembly to clarify the right to privacy. Nevertheless, he says that in the interim the argument that dagga is for home use shall be a defence. He thus orders it with immediate effect, with no opportunity for correction, if he has made an error, thus undermining the rule of law. In his mind, parliament should just be given a choice how to implement his order – not whether to implement it.

The combined effect of these multiple irregularities are a reckless abuse of judicial authority, which cause public harm and undermine the separation of powers in the constitution. Hopefully a higher court will overturn it. Political activist lawyers don’t belong in the judiciary. They belong in legislature, executive, or as advocates. The judges responsible for this decision are a threat to democracy and the rule of law and need to be removed.