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Open Lawfare Looms! Cannabis Communities Prepare to Intensify Their Battle Against State Prosecutors and Lawmakers

Open Lawfare Looms! Cannabis Communities Prepare to Intensify Their Battle Against State Prosecutors and Lawmakers

Two significant court actions have been launched in the wake of last weekend’s cannabis mass action protests. THC has filed an application to the Supreme Court of Appeal on the Western Cape ruling against private cannabis clubs, and FGFA is to relaunch the “Trial of the Plant” in the Pretoria High Court as community organizations resort to lawfare to straighten the Justice Department’s thinking around cannabis legislation.

Brett Hilton-Barber

21 September 2022 at 10:00:00

Cannabis Lawfare is now the name of the game as the gloves come off between community organizations and the private sector on the one hand, and various Government departments on the other.  Two significant court actions have been launched in the last few days:

  • FGFA is to reactivate “The Trial of the Plant”, the 2017 case against seven Government Departments challenging the continued prohibition of cannabis. FGFA made the announcement on 21 September 2022 and have taken on cannabis legal heavyweight Paul-Michael Kiechel of Cullinan and Associates to advise on strategy. “We will be narrowing our challenge so as to not fight over territory already gained” says FGFA spokesperson Charl Henning. “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”.

  • The Haze Club (THC) has filed leave to appeal against the Western Cape High Court decision confirming the illegality of Private Cannabis Clubs (PCC’s).  The Court gave THC until 19 September 2022 to file papers with the Supreme Court of Appeal, which it has done. Andrew MacPherson of Ward Brink Attorneys, who is representing THC director Neil Liddell, believers the Court erred in not applying the “law of general application” and took a narrow interpretation of the law that relied on the Drugs and Drugs Trafficking Act, sections of which have been ruled unconstitutional.

Both these initiatives will take months if not years to work their way through South Africa’s clogged court system.

The intensifying of lawfare against the State to force it to enact its own policies has stepped up after last weekend’s protests at Parliament and the Union Buildings. The Presidency accepted but did not comment on the CMAC’s memo of demands, one of which was a halt to cannabis arrests. The Agriculture Ministry (DALRRD) responded swiftly to the protests saying an inter-ministerial committee would look at fast-tracking certain regulatory measures that would benefit legacy farmers. This would be done in parallel to the cannabis legislation being considered by Parliament, it said.

However, the cannabis-related Bills before Parliament are deeply controversial and will probably be subject to the next round of lawfare with court challenges to:

  • The Cannabis for Private Purposes Bill 2022, which remains riddled with constitutional defects, and is likely to be challenged in court the moment it becomes an Act (although this is unclear as to when this will be as MP’s still have to see the final draft);

  • The Drugs and Drug Trafficking Amendment Bill of 2022 which continues to criminalize cannabis despite earlier indications from Government that this would be changed. Public comment on the Bill closed on 16 September 2022. Through the Dear South Africa “active citizen” website 342 comments were posted to Parliament’s Justice and Correctional Services Portfolio Committee. It’s not known how many submissions were made directly to the Committee. Most of the public comment was a negative reaction to cannabis being included as a Schedule 2 drug in the 2022 amendment which flies in the face of Government policy.

The court news that Parliament’s Justice and Correctional Services Portfolio Committee is really desperate to hear is whether the Constitutional Court will grant it a deadline to amend the Drugs Trafficking Bill. In 2020 ConCourt gave Parliament two years to rectify sections of the Drug Act that it found unconstitutional, and with less than three months to go before the deadline, the proposed Bill has just landed in on MP's desks.

Should ConCourt not extend Parliament’s deadline beyond 17 December 2022, the consequences could be a legal nightmare for SAPS and the NPA and cannabis lawfare will increase at an unprecedented scale. 

Senior State Law Advisor Sarel Robbertse warned MP’s last month, that failure to pass the Drugs Bill before the deadline would create a legal void, in terms of which all arrests and convictions under the Drugs Trafficking Act of 1993 would be open to challenge.

Then there’s the Medicines Act which is another legal landmine waiting to explode. Robbertse said that in the same way that ConCourt found the Drugs Act to blur the separation between the Executive and Parliament, the same potentially applied to the Medicines Act. This meant that the Medicines Act could not be used as an alternative to the Drugs Trafficking Act, because provisions relating to illegal drugs could be deemed unconstitutional.

These are just the headline lawfare issues. Cannabiz Africa understands there are a number of legal challenges against SAHPRA over the import of cannabis products and the restrictions for doses.


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