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Showdown Time, Folks: Cannabis Clubs vs SA Justice System!

Cape Town’s largest private cannabis clubs are bringing in the legal heavyweights to take on the South African justice system in major legal showdown.  The outcome of a January 2021 court case has far-reaching implications for the fledgling South African cannabis economy and those trying to get a foothold into the recreational market.

Two directors of Cape Town’s The Haze Club (THC), who cannot be named, are facing criminal prosecution after their Ottery grow facility was bust on 23 October 2020. THC, which claims to be “South Africa’s first 100% Legal Premium Growing Service” is fighting the validity of the charges, claiming that it had been operating within the law, which had been misinterpreted by police. 

 

the haze club (THC), cannabis bust cape town, south africa cannabis raid, legal cannabis cape town, SA Cannabis Clubs Showdown

SAPS pic of the THC grow room in Ottery during October bust

 

The two directorsare due to appear in the Wynberg Magistrates Court in Cape Town on 21 January 2021.

See CA story on THC  bust

 

Support grows for arrested THC directors

The THC directors are likely to be joined by the Cape Cannabis Club (also known as C3), a grow business that suspended operations in mid-December 2020 to avoid police potentially targeting them. C3 is likely to join the proceedings as an amicus curiae (friend of the court), which would allow them to have a say in the proceedings.

THC is being represented Cliffe Dekker Hofmeyr (CDH), who are being supported pro-bono by leading cannabis law firm, Schindlers Attorneys. Schindler’s Paul-Michael Keichel was instrumental in putting the legalization argument to the Constitutional Court in 2018 and have provided legal support for cannabis activists for years . 

SA Cannabis Clubs Showdown, Schindler's Attorneys

No doubt where Schindler’s loyalties lie 

 

CDH’s man on the case is senior associate Andrew MacPherson, a specialist in high-level dispute resolution. He told Daily Maverick that they wanted to get the matter kicked out of court right up front. 

“We intend to stay the criminal prosecution, pending the hearing of a declaratory application in respect of the grow club model. The declaratory order may be launched in the Western Cape High Court. We are busy finalising the application and hope to launch it as soon as possible.”

 

See Cannabis grow clubs want High Court to decide if customers can ‘sit back, relax and enjoy the fruits’ of their joint labour

 

SA Cannabis Clubs Showdown, Andrew MacPherson

CDH’s Andrew MacPherson: THC case is a test of the constitution

 

At the centre of the defence’s case is the landmark September 2018 Constitutional Court ruling that it was not illegal for adults to use and cultivate cannabis in private spaces.  The police see things differently – they say it’s a straight-forward case of illegal cultivation and dealing – in other words: a crime that they are obliged to prosecute under the current law.

 

See SAPS statement

 

‘A bespoke gardening service operating within the law’

Schindler’s Keichel told Daily Maverick there was no direct exchange of cannabis for money as a client’s cannabis was grown for them in a private rented space, and therefore the police action was not lawful: 

“We disagree and hope to convince a court to declare that this is not so and that the model, if done within strict parameters, corresponds with the spirit and purport of the judgment of the Constitutional Court.”

“A bespoke ‘gardening service’ is then provided, whereby that person’s cannabis is tended to by people who know how to grow cannabis,” Keichel said. 

 

Schindler's Attorneys, SA Cannabis Clubs Showdown

Schindler’s Keichel: If its legal and you’re a hopeless grower, where are you going to get it?

 

 “The Justices of the Constitutional Court would not [in our opinion] have intended to limit the right to grow cannabis to those with enough private space and green-enough fingers to do so [thereby discriminating against the rest of us]. Thus, the grow club model does no more than to extend the right to grow one’s own cannabis to all who wish to exercise it.”

A Schindlers Attorneys’ media release said it was hoped that “legal certainty in respect of the grow club model” would be achieved. It also said that, together with Cliffe Dekker Hofmeyr and THC, it intended to eventually “call for support from members of the public who may have an interest in the aforesaid”.

 

Anyone interested in supporting the Private Cannabis Club legal initiative should contact cannabis@schindlers.co.za

 

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