Fields of Green for All (FGFA) has announced is to re-open the “Trial of the Plant” (TOTP), the 2017 case in which three cannabis activists sued the Government on charges of enacting “unlawful laws”. 

This opens up a new headache for the Justice Department (DoJ), as the applicants will seek an outcome that allows for anyone to make a living off cannabis, something that the DoJ has vigorously opposed. However, since the original trial, Government policy has shifted and the Justice Department now finds itself having to draft laws that allow for the future commercial trade in cannabis, even though senior figures in the DoJ are ambivilent about legalization.

The original TOTP case arose out of the 2010 arrest of Myrtle Clarke and her partner Julian Stobbs (the Dagga Couple) for possession and cultivating cannabis at their Gauteng small-holding. The two challenged the constitutionality of their arrest in 2017 and sued the Government.

The TOTP was adjourned sine die (part heard) in August 2017, and was overtaken by the Constitutional Court application by Gareth Prince in November 2017, arguing that the consumption of cannabis was not against the Constitution. This ultimately led to the September 2018 ConCourt ruling that Prince was correct and that Parliament should enact the necessary legislation within two years to enable the private consumption of cannabis by adults.

Since then Parliament has been unable to pass the Cannabis for Private Purposes Bill, which has undergone at least three major amendments yet remains constitutionally defective.

FGFA believes that by relaunching the “Trial of the Plant 2.0” (TOTP2), it will force clarity on certain legal issues that were never fully dealt with before. Many experts were set to testify at TOTP, in which Myrtle Clarke and Julian Stobbs (the Dagga Couple) and Clifford Thorp sued seven Government departments over inconsistent cannabis legislation. However,  the trial was adjourned by Judge Ledwaba to give Parliament time to pass new cannabis legislation.

FGFA spokesperson Charl Hening says that “after days of evidence, the TOTP was rendered part-heard because of the state parties and Doctors for Life ambushing us with many thousands of pages of evidence, which, upon later analysis, supported far more than it hurt us”.

“We went on to intervene at the level of the Constitutional Court in the consolidated cases brought by Ras Gareth Prince, Jeremy Acton, and others, which culminated in the 2018 Judgment that saw the effective decriminalisation of the personal and private use, possession and cultivation of cannabis in South Africa and which afforded our Parliament two-years to replace the legislation struck-out as being unconstitutional. Then, we waited”.

Now the FGFA says it’s waited long enough. In the interim both Stobbs and Thorp have since passed on, with Clarke being the only original surviving applicant.

“So, today, off the back of last week’s mass action, we announce the launch of the Trial of the Plant 2.0, being the re-opening and continuation of the original Trial of the Plant” said Henning on 21 September 2022.  “We will be meeting with our lawyers from Cullinan and Associates and narrowing our challenge so as to not fight over territory already gained. Our focus, fundamentally, will be to ensure that anyone who wishes to is allowed to earn a living through cannabis, as so many are hypocritically permitted to do through the cultivation of and trade in everything related to alcohol and tobacco.

“In addition, we plan to eliminate some of the rats and mice left behind by the 2018 Judgment – which seemingly provide quarter to the state parties and their agents to trample on our hard-won human rights”.

The re-opening of the TOTP is likely to expose further the contradictory thinking within Government. For instance, Senior State Lawyer Sarel Robbertse made a written submission the Western High Court opposing The Haze Club application to have private cannabis clubs legally recognized and the Court found in his favour. Yet just days before, Robbertse had told Parliament that PCC’s had the potential to play a beneficial role as a “harms reduction” mechanism to lower risks associated with cannabis legalization.

FGFA is seeking to raise funds for TOTP2 and has appealed to the public for support.

“We cannot do this alone. Only through generous donations (both of money and expertise) were we able to get as far as we did in 2017 and 2018. Back then, many didn’t take us seriously, but now they know what’s possible and that we’re their best bet. It’s time to treat the funding of this final push as a strategic investment. Spending a little now will help us to unlock the full potential of a sunrise industry, in which there will be space for you, your business and the businesses of your compatriots. Help us to help you – we are stronger together”.

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