Austin v Minister of Justice and Others, Clarke v Minister of Justice and Others (281/2018, 282/2017) [2018] ZAECGHC 34; 2018 (2) SACR 49 (ECG) (9 May 2018)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO: 281/2017

Date heard: 03 May 2018

Date delivered: 09 May 2018

In the matter between:

KAILYN ELIZABETH AUSTIN

Applicant

and

TSHILILO MICHAEL MASUTHA N.O. MINISTER OF JUSTICE

First Respondent

THE DIRECTOR OF PUBLIC PROSECUTIONS

Second Respondent

THE MAGISTRATE FOR EAST LONDON COURT

Third Respondent

AND

CASE NO: 282/2017

DARRYL CLARKE

Applicant

THE MAGISTRATE FOR EAST LONDON COURT

Third Respondent

JUDGMENT

LOWE, J

INTRODUCTION

[1] In these matters, which are substantially identical but for the identity of the Applicant, the relevant principles and result can be dealt with in one judgment.

[2] In summary, both applicants were arrested in East London as a result of an authorized operation in terms of Section 252A of the Criminal Procedure Act 51 of 1977, where it is alleged Applicants participated in separate illegal drug sales to an undercover police officer posing as a student wearing a school uniform.

[3] Each was subsequently charged with drug deals both in respect of marijuana and Psilocybin.

[4] It appears from the papers, and I was informed from the bar by Second Respondent’s counsel, that in fact Applicants face charges of both possession of marijuana and dealing therein.

[5] The Applicants seek an order that the charges against them in the East London Magistrate’s Court, be stayed pending the outcome of an application and/or action, and the appeals relevant thereto, to be instituted by Applicants against Respondents, in which Applicants challenge the constitutionality of certain provisions of Act 140 of 1992 and Act 101 of 1965, and in particular insofar as these Acts deal with the use and possession of and dealing in marijuana and the presumptions that arise in respect of possession thereof. Applicants seek costs only in the event of the matter being opposed.

[6] Applicants state that they have been smoking marijuana for many years without harm, sometimes eating same for medical reasons and as part of their spiritual beliefs and practices.

[7] The background to the stay which is sought, essentially arises from the judgment of Davis J in Prince v Minister of Justice and Constitutional Development and Others; Rubin v National Director of Public Prosecutions and Others; Acton and Others v National Director of Public Prosecutions and Others[1] in which the Court found as follows:

“[132] For these reasons the following order is made

1. The following provisions are declared inconsistent with the Constitution of the Republic of South Africa Act 108 of 1996 and invalid, only to the extent that they prohibit the use of cannabis by an adult in private dwellings where the possession, purchase or cultivation of cannabis for personal consumption by an adult:

1.1. sections 4(b) and 5(b) of the Drugs and Drug Trafficking Act 140 of 1992 (the Drugs Act) read with Part III of Schedule 2 to the Drugs Act; and

1.2. section 22A(9)(a)(i) of the Medicines and Related Substances Control Act 101 of 1965 (the Medicines Act) and s 22A (10) thereof read with schedule 7 of GN R509 of 2003 published in terms of s 22A(2) of the Medicines Act.

2. This declaration of invalidity is suspended for a period of 24 months from the date of this judgment in order to allow Parliament to correct the defects as set out in this judgment.

3. It is declared that until Parliament has made the amendments contemplated in paragraph 1 or the period of suspension has expired, it will be deemed to be a defence to a charge under a provision as set out in paragraph 1 of this order that the use, possession, purchase or cultivation of cannabis in a private dwelling is for the personal consumption of the adult accused.”

[8] I am informed that this matter was appealed to the Constitutional Court and that argument has been heard, and judgment is expected in the reasonably near future.

[9] There can be no doubt that the ambit of the judgment of Davis J and the upcoming appeal judgment may well impact on some or all of the charges against Applicants.

[10] Both in this Court (Case 2692/15) and in other Courts, in other Divisions similar orders as sought in this matter have been granted relevant to a stay of prosecution, in the interests of justice pending the resolution of the relevant issues constitutionally.

[11] I wish to make it clear, that I am not called upon to decide on the constitutionality or otherwise of the impugned provisions of the Drugs and Drug Trafficking Act or the Medicines and Related Substances Act, this inquiry sitting with the Constitutional Court presently.

[12] In this application, I simply must determine whether the remedy sought by the Applicants is competent and appropriate to the circumstances and whether the Applicants have made out a case that entitles them to such an order.

[13] As I have already said, Applicants refer to a number of cases where orders staying prosecution of individual criminal matters were granted, which are used as a basis to support the application.

[14] These cases are well known to Second Respondent, and Second Respondent conceded in argument that in other Divisions of the High Court, in similar circumstances there had indeed been orders staying prosecution in respect of matters similar to those which are raised in this case, it being argued, however, that I am not bound thereby.

[15] The granting of a stay in 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. It is also true that the granting of a stay by a single Judge in one Division cannot and does not establish precedent binding on all Divisions. Such stays are, however, persuasive, on similar facts to this matter.

[16] I accept as was pointed out in S v Basson[2] 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.”. Of course the purpose of arrest is to bring suspects before a court for trial.

[17] It would seem to me, simply, that along the lines adopted by other courts in other Divisions, it would be wasteful of costs affecting the public purse, and contrary to the interests of justice were the prosecution to proceed in these matters pending the outcome of the Constitutional Court matter referred to above, which may well impact on the prosecutions in this matter, and the charges brought.

[18] In the circumstances of the matter I am persuaded that, notwithstanding the opposition of Second Respondent, a stay of proceedings in one form or another is justified.

[19] In the circumstances the following orders issue:

1. The matters in the East London Magistrate’s Court, in which Applicants are the accused on charges of possession of, and dealing in dagga, are provisionally stayed pending the outcome of the Appeal, in Prince v Minister of Justice and 4 Others 2017 (4) SA 299 (WCC) and 8760/2013; 7295/2013; 4103/2012 in which Applications those Applicants challenge the Constitutionality of certain provisions of the Illicit Drugs and Trafficking Act (Act 140 of 1992), and in addition, certain provisions of the Medicines and Related Substances Control Act (Act 101 of 1965) and in particular insofar 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. The Applicants are required to institute similar Applications in the High Court (ECD) against Respondents herein, within 60 days from date of this order, challenging the Constitutionality of the applicable Sections of Acts referred to in paragraph 1 above and unless Applicants institute the aforesaid Applications within 60 days from date of this order, this order (and stay) will automatically lapse and Respondents will be entitled to proceed with the criminal actions against Applicants.

3. The matters in the East London Magistrate’s Court, in which the Applicants are the accused on charges of possession of, and dealing in Psilocybin, are provisionally stayed pending the outcome of the Appeal referred to in paragraph 1 above in which the Applicants challenge the Constitutionality of certain Provisions of the Illicit Drugs and Trafficking Act (Act 140 of 1992), and in addition, certain provisions of the Medicines and Related Substances Control Act (Act 101 of 1965) and in particular insofar as these Acts deal with the uses and possession of, and dealing in Psilocybin and the presumptions that arise in respect of the possession thereof.

4. The Applicants are required to institute similar Applications in the High Court (ECD) against Respondents herein, regarding Psilocybin,

challenging the Constitutionality of the applicable Sections of the said Acts, within 60 days from date of this order, and unless

Applicants institute the aforesaid Applications within 60 days from date of this order, the order (and stay) will automatically lapse and Respondents will be entitled to proceed with the criminal actions against Applicants.

5. Each party is liable to pay his or her own costs.

__________________________

M.J. LOWE

JUDGE OF THE HIGH COURT

Obo the Applicant:

In Person

Obo Second Respondent:

Adv S J Cubungu

Instructed by:

State Attorney

PORT ELIZABETH

c/o Yokwana Atttorneys

GRAHAMSTOWN

[1] 2017 (4) SA 299 (WCC)

[2] [2004] ZACC 13; 2004 (6) BCLR 620 (CC)