Cannabis legal activist Charl Pretorius of H3 Legal Solutions has written to the Minister of Trade Industry and Competition and cc’d the Justice Minister and the Constitutional Court saying the Upington Forfeiture Case is not a routine criminal matter but a “signal of deep institutional failure”.
He has called for the immediate suspension of of residential-property forfeiture in petty or low-value drug matters and full disclosure of SAPS entrapment authorisations, operational directives, and forensic-evidence procedures in the Upington case. He said Parliament should look into the incentive structures that reward SAPS and the Asset Forfeiture Unit for confiscations in minor-value offences.
Botha said a national proportionality directive should be adopted to prevent punitive excess in cannabis enforcement during the regulatory transition.
His reaction follows a media statement by Senior Public Prosecutor Christopher Bouman, who commended the conviction by the District Court in Upington of Lucia Louw (44) and Raynard Jacobs (23) on “charges of dealing in cannabis following a successful undercover police operation”.
In a statement issued on 12 September 2025, titled ‘Two Drug Dealers Convicted After Succesful Undercover Operation’, Bouman said the operation that yielded 30 bags of cannabis worth R300 was “another step forward in the fight against the scourge of drugs destroying the future of South Africa’s youth. It demonstrates that the prosecution, working with SAPS, will hold drug dealers accountable.”
The matter was raised during the Project Indlela Pathways to Legality webinar hosted by Cannabiz Africa and SACCA on 11 November 2025, with numerous participants wanting to know ‘what is happening with the Upington lady?’
Government policy representative John Jeffery said he would raise the issue with NPA.
The Issue has also been raised on TV Channel Newzroom Africa – here’s the link.
This is Botha’s letter to the Ministers of the DTIC and Justice:
SUBJECT: THE UPINGTON CANNABIS FORFEITURE CASE AND THE NORMALISATION OF STATE OVERREACH
The conviction of Ms Lucia Louw of Upington, and the subsequent forfeiture of her home by the State following a R300 undercover cannabis purchase, is not a routine criminal matter. It is a signal of deep institutional failure.
An undercover SAPS operative purchased thirty grams of cannabis for R300 inside a private residence. On that single act, the State secured a conviction for “dealing” — and then seized Ms Louw’s house under the doctrine of instrumentality of an offence.
This is not the disruption of organised crime.
This is not the dismantling of syndicates.
This is the confiscation of a citizen’s home over cannabis worth less than a household grocery basket.
It is punishment as dispossession.
A nation divided by principle and practice
This is occurring in South Africa where:
• The President has publicly committed to unlocking the cannabis economy for inclusive growth.
• Government forecasts 130,000 potential jobs within the cannabis value chain.
• The Constitutional Court has affirmed the right to privacy in personal use.
• The Cannabis for Private Purposes Act (2024) signals a shift away from criminalisation toward regulation.
Yet, at the community level, SAPS continues to engineer entrapment scenarios; creating offences that would not otherwise exist, for the express purpose of triggering asset forfeiture.
When the State can take a home for R300, no South African is safe.
When law enforcement can manufacture a crime and enrich itself with the accused’s property, every citizen becomes vulnerable to administrative predation.
This is not law and order; it is power outside the law in motion
What is being demonstrated is control, not justice.
The implications are profound:
• The Constitution does not protect the poor in practice.
• Economic inclusion in cannabis is illusory if legacy households are pushed into homelessness.
• The message to small growers, traditional healers, rural cultivators, and caregivers is unmistakable:
Unless you are attached to a corporation, a licence structure, or political patronage, you remain a criminal.
Your home is collateral.
Legal Context and Constitutional Analysis
The State’s action against Ms Louw was executed under the doctrine of instrumentality of an offence, as contemplated in the Prevention of Organised Crime Act 121 of 1998 (POCA), read together with Section 35 of the Criminal Procedure Act 51 of 1977 (CPA).
Under Section 48(1) of POCA, the State may apply for forfeiture of property that is either an instrumentality of an offence or proceeds of unlawful activity. Section 1 defines “instrumentality” as any property which is concerned in the commission or suspected commission of an offence.
In this case, the property (Ms Louw’s home) was deemed an “instrumentality” based solely on a R300 cannabis sale, following an undercover SAPS operation. Such actions raise profound constitutional questions of proportionality, fairness, and abuse of process.
The Criminal Procedure Act, under Section 252A, regulates entrapment and dictates that undercover operations must be authorised by the Director of Public Prosecutions (DPP) and conducted in a manner proportionate to the alleged offence. A contrived transaction engineered to create an offence for the purpose of asset forfeiture falls foul of this section and undermines procedural fairness guaranteed under Section 35(3) of the Constitution.
The Constitutional Court has repeatedly cautioned against disproportionate forfeiture:
• In NDPP v Prophet 2006 (2) SACR 525 (CC), the Court held that forfeiture must not amount to an arbitrary deprivation of property under Section 25(1) of the Constitution.
• In NDPP v Cook Properties 2004 (2) SACR 208 (SCA), it was affirmed that property qualifies as an “instrumentality” only if it plays a reasonably direct role in the commission of the offence.
• In Mohunram and Another v NDPP 2007 (6) SA 87 (CC), the Court warned that forfeiture must not be used punitively but rather to advance legitimate law-enforcement objectives.
In Ms Louw’s case, the forfeiture of an entire residence for an offence valued at R300 represents an egregious violation of these precedents and constitutes a grossly disproportionate punishment inconsistent with the principles of constitutional justice and proportionality.
Such conduct by the State, particularly where the alleged offence was manufactured through entrapment, risks transforming the justice system into a tool of economic dispossession rather than social order.
We therefore call for:
1. Immediate suspension of residential-property forfeiture in petty or low-value drug matters.
2. Full disclosure of SAPS entrapment authorisations, operational directives, and forensic-evidence procedures in the Upington case.
3. Adoption of a national proportionality directive to prevent punitive excess in cannabis enforcement during the regulatory transition.
4. 4. A parliamentary oversight inquiry into the incentive structures that reward SAPS and the Asset Forfeiture Unit for confiscations in minor-value offences.
This is not a debate about cannabis alone. It is a question of what kind of State we are becoming.
If a R300 transaction can justify the loss of a family home, the law is no longer a social contract; it is a weapon.
And when that weapon turns inward, every South African is in range.
Respectfully
Charl Botha (B.Proc.S.A)
H3 LEGAL SOLUTIONS Cannabis Regulatory Advocacy & Compliance Advisory
Email: charl@h3legal.co.za
https://www.h3legal.co
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