The start of the campaign to legalize psilocybin in South Africa began on 12 April 2024 when retired trauma counsellor Monica Cromhout and best-selling author Melinda Ferguson launched an application in the Pretoria High Court to have the plant removed from the Drugs Act.

A media statement at the time from their lawyers, Cullinan and Associates, said the applicants were “challenging the constitutionality of provisions in the South African Drugs Act and Medicines Act that criminally prohibit the possession, use, and dealing in, of psilocybin mushrooms. In South African law, as things stand, psilocybin is classified alongside heroin and fentanyl as a Schedule 7 substance, or as “undesirable” and “dependence-producing”. This means that an adult in possession of psilocybin mushrooms, or growing them or sourcing them, entirely for private use, is a criminal in the eyes of the law”.

The applicants have invited the Government ministers (see respondents below) not to oppose this application and suggested that Parliament and the respondents be given 24 months in which to decide how best to regulate psilocybin.

On 6 December 2024, the Director General of Health, Sandile Buthulezi, filed an opposing affidavit in the Pretoria division. of the Gauteng High Court, saying South Africa would be in breach of its international treaties if it considered legalizing the “cultivation, production, trade, possession, and use” of psilocybin. Although Buthulezi was not one of the respondents, he claimed to be acting on behalf of the Minister of Health, who was. There was no word from the other respondents, including the Minister of Justice.

Buthulezi said “It is respectfully submitted that it would be premature for this Honourable Court to compel any rescheduling of psilocybin and psilocin there is no conclusive clinical evidence to do so.

“Furthermore, the criminalisation and scheduling of psilocybin is in line with the international regulatory control to which South Africa is a signatory and which obliges South Africa to ensure that there are laws and regulations domestically that prohibit drug-related activities such There is currently no approved medicinal indication for psilocybin.

“In this regard, the Applicant's contentions of their personal experiences are unfounded, based on no well- founded information, and are accordingly meritless and dangerous. Instead, their contentions pose a great threat to the safety of the greater public, which constitutes a punishable offence.”

Cullinan’s says the applicants argue that, after the ConCourt ruling that adults have a right to the private use and possession of cannabis, it should follow that they also have the same rights for psilocybin.

“That is particularly so since the wealth of expert evidence demonstrates that psilocybin: is not addictive and, used properly in the right setting, has various and numerous benefits, carrying very low risk.”

In Cromhout’s words: “Part of an adult person’s rights to autonomy and dignity, privacy, freedom of expression, and freedom of association, means that they are free and able to choose to participate in a range of different activities, even where these activities may have significant risks of harm.

“There are, for example, risks in taking commercial airline flights; and driving cars or buses on busy roads. People undertake life-threatening surgeries for purely cosmetic reasons. People participate in a range of extremely dangerous sporting activities like skydiving, rugby, mountain climbing, big wave surfing, and base jumping.

“But the law permits all of this. The law also presently allows for the consumption of far more harmful substances, such as alcohol and tobacco (and, now, cannabis)."

Buthulezi’s affidavit says bluntly: “The criminalisation and scheduling of psilocybin is a policy decision by Government. Accordingly, there is a clear and rational relationship between the means employed and the ends sought to be achieved.  The criminalisation is deemed to be necessary for protecting users from the potential harm associated with psilocybin, a substance regarded by the criminalising provisions as an “undesirable dependence- producing substance”.

“The purpose of the criminalising provisions is a mechanism through which South Africa can wage war on drugs and abide by and uphold international law obligations so as to prevent the scourge of illicit drug trafficking and the undisputable harms which stem from such activities. In this regard, both these Acts are of fundamental importance."

The DG says; “I note with concern that the First Applicant is administering the so-called experiences by supervising other individuals. The First Applicant is not qualified to administer any drugs.

"In actual fact, the First Applicant is confessing to contravening the provisions of the Drugs Act and the Medicines Act. This is criminally punishable conduct."

Cullinan’s says : “If the application succeeds, psilocybin use by adults in South Africa would be regulated, not criminally prohibited. It is worth noting that key figures such as President Kgalema Motlanthe and Justice Edwin Cameron have previously made public statements challenging the assumption that criminal prohibition serves the goal of harm reduction.

“The applicants’ founding papers highlight many other foreign countries, which never even saw fit to outlaw mushrooms in the first place, or are electing to bring them back into their legal systems, in recognition of that psilocybin use should be regulated, instead of criminalised."

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