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Grim Start to 2023 as Lawfare Looms and Justice Ministry Holds the Prohibitionist Line

Grim Start to 2023 as Lawfare Looms and Justice Ministry Holds the Prohibitionist Line

Cannabis will be the subject of a great deal of courtroom action in the year ahead as the Department of Justice is set to oppose any forms of legalization. Despite Government’s stated intention to develop a cannabis economy in which legacy growers and township entrepreneurs are included, state lawyers apparently want none of this.

Brett Hilton-Barber

12 January 2023 at 07:30:00

The South African government’s legal department has emerged as the biggest obstacle to the Presidency’s vision for developing an all-inclusive cannabis economy.  

Under the stewardship of senior state law advisor Sarel Robbertse, proposed laws relating to cannabis are constitutionally unsound and are the consequence of Constitutional Court orders rather than Government policy.

The Drugs and Drug Trafficking Act of 2022 was rushed through Parliament in December 2022 to avoid a legal nightmare for the National Prosecuting Authority which faced the possibility that every drug case could have been thrown out of court had the Act not being passed. But it is still constitutionally flawed as it has to be amended further to enforce a Gauteng High Court decision that sections relating to the treatment of minors relating to cannabis offences are unconstitutional. 

It also still lists cannabis as a scheduled substance after the startling revelation by Robbertse to MP’s last year that it had been removed and then re-instated from the Act in the interests of “maintaining the status quo”.

Several industry observers have pointed out that until such a time that cannabis is removed from the Drugs Act, commercial trade is highly limited and mainstream financial institutions cannot invest in the industry. The Drugs Act is the main tool of prosecution against traditional growers, particularly in the Eastern Cape.

Robbertse has also been pivotal in opposing the Private Cannabis Club model even though he admitted in Parliament that it may provide a solution to some of the problems in the Cannabis for Private Purposes Bill. Robbertse has been the lead drafter of the Bill which has gone through at least four different incarnations, each one raising fresh constitutional problems. The Bill does not make provision for legacy growers even though Government has promised urgent interim measures to incorporate them into cannabis reform. Justice Minister Ronald Lamola is understood to be vested in cannabis remaining within the criminal justice system despite differing views in other departments, particularly Trade, Industry and Competition. This has led to policy confusion in which lawfare can flourish.

There is also an alarming capacity issue developing in the state legal department as several senior officials are set to retire soon and DA MP Glynnis Breytenbach said this could have severe consequences for Parliament’s ability to pass laws in general.

Coming up the main sites of lawfare are going to be:

  • Trial of the Plant 2.0: a Fields of Green Initiative with legal firm Cullinan and Associates challenging current cannabis prosecutions

  • The Haze Club appeal: the application by THC to have the private grow club model legally recognized is likely to be heard by the Supreme Court of Appeal late this year

  • Plant Breeder’s Act: Cannabiz Africa understands that a coalition of interests in the hemp industry are set to legally challenge the 0,2% THC limitation in the Act

  • SAHPRA’s 0,2% limitation on THC in CBD products: the Cannabis Trade Association Africa is raising funds to legally challenge SAHPRA’s limits on the basis that they are not evidence-based

There is also the question of whether any legal action will follow the alleged dumping of cannabis into local illegal markets by SAHPRA licensed cultivators struggling with their offtake agreements. 

Mzimvubu Farmers Support Network director Ricky Stone told Parliament last year that he knew of SAHPRA licensees in three provinces that were dumping flower into the domestic market and that this was causing a cannabis stockpile in Mpondoland. Stone maintains that under customary law, the cultivation of cannabis is not illegal as it has been practiced for hundreds of years in the area.

The other area of lawfare may involve the scores of informal illegal cannabis shops that have appeared across the country, many operating blatantly and with apparent impunity which would suggest certain police officers may be on their payroll. 

There are also approximately 30 ‘legal’ private grow clubs operating in the country more or less on the same model as THC’s, which the Cape High Court found last year to be illegal.

The other site of lawfare likely to gather pace this year is on the labour front where controversial rulings have been made.

It’s clear that the cannabis community is starting to push the boundries and further legal challenges are likely to emerge in the year ahead. Last year saw mass protests against the Government in Cape Town and Pretoria against the slow pace of cannabis reform. The protestors also called for a halt to cannabis arrests and the removal of the plant from the criminal justice system.

Government has not responded directly to the call for a halt to arrests, but has promised "urgent interim measures" to protect legacy growers. The starting point will be to re-amend the amended  Drugs Trafficking Act to delist cannabis otherwise legacy growers and others will continue to be arrested in 2023, and there will be further absurdities such as the  cannabis pet shampoo seized recently by the Hawks in Richards Bay !

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