Dear Editor.
The dagga community brought an urgent application before the Western Cape High Court on 14 April 2026, seeking relief against 8 government departments in Part A. In Part B, that will be heard later in the year, we challenge the constitutionality of the new Cannabis for Private Purposes Act 7/24.
On 14 April 2026 the respondents argued that they needed more time to respond to the issues raised in Part B and the judge ordered that answering affidavits and replying affidavits as well as heads of argument be filed, and he postponed the matter to 8 June 2026.
The majority of the respondents filed their answering affidavits by 14 May but others only filed on 22 May 2026. The applicant then had to draft replying affidavits to the 1st and 2nd, 4th and 5th and 6th and 7th respondents, which I completed and filed a week later on 30 May 2026.
I then prepared heads of argument which I only finished on 4June and served on 5 June 2026. The respondents only served their heads on me from the 1st to the 3rd of June. I filed my heads the Friday before the hearing.
Serving Heads of Argument on the Judge and the respondents the Friday before the hearing on the next Monday is not uncommon in urgent matters. However unbeknownst to me, Judge’s registrars leave court at lunch time on Fridays; therefore the judge’s registrar’s could not receive the papers, when I arrived at 3pm, but it was send to her electronically soon thereafter.
On 8 June 2026 the High Court decided that the matter could not proceed because the Judge and the respondents argued that they did not have sight of my heads of argument timeously and because the court file haven’t been indexed and paginated.
I protested and argued that the matter cannot be delayed because the issues of concern were raised and traversed in the affidavits. The fact that the court file were not indexed or paginated need not prevent the matter from proceeding because the paragraphs were numbered in the affidavits.
The court however choose to make more of the procedural shortcomings, and elevated these concerns over the substantive issues raised by the applicants. I argued that it cannot be that the voice of justice is only heard if she comes in a certain form, because justice is not a respecter of person neither is she a respecter of form.
The applicants are self represented and resource challenged. Despite having little, to no assistance and resources, I filed the requisite papers. In these circumstances the court generally condone procedural shortcomings and focus on the substantive issues raised in the application. Access to courts and justice is difficult for poor and ordinary people and the issues are of considerable importance to the applicants.
The appointment of the Acting Justice that was seized with the matter; finishes on 19 June 2026, but he agreed to hear the matter during recess on 23 & 24 June 2026, because it was only on those dates that all of the government lawyers are available.
The Judge President of the Western Cape, however, decided that this cannot be done because the matter has not been argued before Acting Justice Mgengwana, and could therefore not be described as a part heard matter which would have entitled AJ Mgengwana to continue with the matter. Again procedure was allowed to triumph over substance because Mgengwana was seized with the matter and a purposive reading of the law and rules could have allowed him to continue with the case.
The Judge President stated that because it is recess that she could not appoint a different judge for the recess period therefore ordered that the matter be heard in the second week of the next term and the first available date to all counsel in the matter is 31 July 2026.
Despite the applicant stating that this in effect mean that another 15 000 people would suffer the consequences of unlawful arrest, the Judge President elevated her court’s procedure above that of the guaranteed rights of the dagga community.
Despite me arguing that her ruling effectively meant that she rejected our urgency arguments the JP insisted that she hasn’t prejudged the issue and that the matter remain in the urgent court. The JP pointed out that matters on the ordinary roll takes 8-12 months to make it to court, but this matter was expedited.
It’s aluta continua for the dagga community, and we will take this opportunity to strengthen our arguments and our case, by making sure we have more supporting affidavits from especially small farmers and members of the Rastafari and dagga community.
Yours in Justice
Ras Gareth Prince.
