Strict Liability for ‘Home-grown’ Cannabis (Dagga): Is it Constitutional?

Paper presented at the 2013 CLEA Conference in Durban

Dumile Baqwa
School of Law, University of KwaZulu-Natal

Section 5 of the Drugs and Drug Trafficking Act 140 of 1992 prohibits drug dealing in South Africa. Section 13 of the Act provides that it is a criminal offence to contravene the provisions section 5. Section 13(1)(f) provides that it is an offence to deal in any undesirable dependence-producing substance. Part 3 of Schedule 2 of the Act identifies the prohibited undesirable dependence-producing substances. The list of prohibited substances includes cannabis (dagga), the whole plant or any portion or product thereof. The statutory definition of the term ‘deal in’ includes the cultivation of prohibited substances within its ambit. Consequently, the cultivation of dagga may be punished as drug dealing.

The starting point will be an explanation of the actus reus requirements for the offence of dagga dealing. Particular attention will be focused on the process of differentiating between dagga dealing and dagga possession. However most of the attention must focus on the mens rea requirements for the offence of being a dagga dealer.

The most significant issue is whether the private consumers of home-grown dagga are strictly liable as drug dealers. Is the prosecutor required to prove that the accused had the intention to deal in dagga, if the dagga was cultivated for private consumption? If the cultivation of dagga is a strict liability offence, then its compatibility with the provisions of the South African Constitution must be confirmed.

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