It’s time the Constitutional Court stepped in and saved Government from itself.
That’s the view of Charl Botha, legal strategist at H3 Legal Solutions who has written to Concourt’s registrar, Justice Dunstan Malombo, requesting that the apex court exercise its judicial oversight to restore credibility in the constitutional process.
Botha writes that, seven years after ConCourt instructed the legislature to pass an appropriate law to support the 2018 landmark judgment, Government has failed to do so. Botha says this amounts to a breach of the state’s constitutional obligations.
Judicial Oversight Necessary to Restore Constitutional Integrity
He writes that judicial oversight over cannabis reform has become all the more pressing since the DTIC admitted that it was only consulting ‘targeted stakeholders’ in its discussions on cannabis commercialisation policy.
He says this amounts to ‘administrative capture’ of the cannabis reform process.
“Official records indicate that DTIC finalised ‘targeted stakeholder’ consultations on 24 August 2025, with public comment only ‘envisaged by March 2026’” he writes. “This sequence shows that substantive decisions precede public participation”
He says that coupled to the legislative quandary is the ongoing persecution of cannabis growers and consumers. “Operation Shanela and related police initiatives continue to arrest citizens for possession and cultivation, generating a climate of fear, extortion, and inequality.”
ConCourt Must Hold Relevant Minister’s Constitutionally Accountable
Botha’s letter to the Registrar, and copied to the President and senior ministers, dated 3 November 2025, calls on ConCourt to reaffirm its supervisory authority under Sections 165(4) and 172(1)(b) of the Constitution.
He wants the Court to direct the Ministers of Justice, Trade and Industry, Health, and Agriculture to file verified progress reports within 90 days on:
a. Steps toward an inclusive and lawful framework;
b. Reasons for ongoing criminal enforcement post-Prince; and
c. Measures to guarantee transparent public consultation.
Botha says the court should “provide interpretative guidance on a reasonable constitutional timeframe for implementation under Section 237, as the present seven-year delay plainly fails the test of diligence and expedition.”
Govt is Subverting Constitution Through Secret Actions
He says the state’s conduct infringes the following constitutional rights:
• Section 9 (Equality): exclusion of rural, traditional, and small-scale actors.
• Section 10 (Human Dignity): ongoing stigmatisation and selective criminalisation.
• Section 22 (Freedom of Trade, Occupation and Profession): denial of lawful enterprise.
• Section 27 (Health Rights): restriction of safe access to therapeutic products; and
• Section 33 (Just Administrative Action): opaque, exclusionary decision-making.
“This submission is made in good faith and in the public interest” he says. “The Court’s 2018 judgment stands as a beacon of constitutional freedom; yet its practical implementation has been subverted by secrecy, delay, and selective enforcement”
“We therefore implore this Honourable Court to exercise its oversight function to restore credibility and ensure that its ruling is honoured in substance as well as form” says Botha.
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