According to a report by Leonie Joubert in the Daily Maverick on 2 November 2023 , the case is being prepared by well-known cannabis attorney Paul Michael Keichel. 

She writes:

“The mind-expanding potential of psilocybin will be at the centre of the argument presented to the North Gauteng High Court soon. The legal team will say that the laws that make psilocybin illegal conflict with citizens’ Section 12 constitutional right to bodily and psychological integrity. Implicit in this is what’s universally considered to be the right to cognitive liberty, explains attorney Paul-Michael Keichel of Cullinan & Associates, the legal firm that will bring the application later this year, or early in 2024.

Psilocybin is a means through which someone can exercise their right to cognitive liberty, writes attorney Sebastian Foster in the South African Journal of Human Rights in May 2023. The Drugs and Drug Trafficking Act and Medicines and Related Substances Act that criminalise psilocybin infringe on that right, he argues.

“We want to set a precedent that you’re allowed to consume a low-harm entheogen in order to change your mind,” Keichel says.

Keichel has a track record in this area: he helped in the case which saw cannabis decriminalisation in 2018, based on the argument that the laws banning cannabis use were in conflict with citizens’ right to privacy. The Constitutional Court ruled that citizens should be allowed to grow, keep and use cannabis in private, without criminal penalty.

“We will argue that the right to privacy is being infringed [in the case of psilocybin], but the key right is the right to bodily and psychological integrity.”

The legal team will ask the court to expand the regulations governing psilocybin in order to allow mushroom cultivation to go beyond own-use growing. Cultivating mushrooms is more technical than cannabis, and the law should allow trade or exchange between growers and users, says Keichel.

We will put up the evidence of the low addiction potential [of psilocybin], which is already used to cure addictions like tobacco and alcohol dependence.

The applicant in the case is a Somerset West-based astrologer Monica Cromhout, and the respondents are likely to include ministers from various state departments, including the minister of health, the minister of justice and constitutional development and the minister of police.

The South African Health Products Regulatory Authority lists psilocybin as a Schedule 7 substance, alongside others such as heroin and crystal meth, which it regards as dangerous habit-forming drugs with no medical potential or scientific value. But Keichel says the regulatory authority’s psilocybin scheduling is not based on evidence, and is built on the historical baggage of the moral panic and political agenda that drove the criminalisation of psychedelics under the 1971 United Nations Convention on Psychotropic Substances.

A substantial body of research supports the medical potential of psychedelics for certain mental health treatments, which the legal team will present in its court submissions.

“We will put up the evidence of the low addiction potential [of psilocybin], which is already used to cure addictions like tobacco and alcohol dependence,” says Keichel.

Meanwhile, the Constitution places the burden on the state to justify any limitations on citizens’ rights when there is a conflict between rights, as in this case.

“It’s not for us to show the absence of harm of psilocybin; it is up to the state to show the presence of harm.”

READ: Somerset West Couple in bid to legalize psychedelics

Decriminalisation: a bridge to medicalisation

The medicalisation of psychedelic-assisted therapy for treating depression, end-of-life anxiety, trauma symptoms and substance dependence is almost inevitable. Until then, decriminalisation can be a bridge, bringing psychedelics use out of the shadows. For the growing number of people who use mushrooms to self-medicate, decriminalisation can allow better access to harm-reduction support from doctors and therapists, drug policy experts say.

“There is no evidence that decriminalisation will increase use or harms,” says Shaun Shelly, a researcher in drug use and rights in the department of family medicine at the University of Pretoria. “There are several benefits, such as better support, harm reduction and open sharing of knowledge about appropriate and safer use.”

The medical community has established protocols for this novel therapy: Harm-­reduction screening from a doctor who can prescribe the treatment (particularly looking for symptoms of psychosis or schizophrenia, conditions a psychedelic experience can worsen); supervised dosing sessions with trained medical experts in a safe, contained environment; and talk therapy with a psychologist or counsellor to prepare for the experience and integrate the insights gleaned during the dream state that a patient enters in the dosing session. Decriminalisation can open the door between this kind of formal support and those operating in the fast-growing underground.

The South African Society of Psychiatrists is gearing up to make psychedelic-assisted therapy mainstream, and also recognises doctors’ ethical duty to “follow a harm-­reduction approach that is evidence-based and complies with legal and professional practice guidelines” for patients who indicate they plan to use psychedelics to self-medicate or use recreationally.

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