Legal experts have slammed the ‘missed opportunity’ by the State to advance the human rights of its citizens as the grow club model appeal joins the congested queue of contested rulings lining up before the Supreme Court of Appeal.
Lawyers representing The Haze Club (THC) are preparing to file for leave for appeal against the Western Cape High Court ruling dismissing the legality of the private grow club model. They have to file their applications by 19 September 2022 with the hope that the Supreme Court will hear the matter before the end of next year.
Paul-Michael Kiechel of Cullinan and Associates told a panel discussion on the implications of the judgement that Section 1A of the Constitution specifically said the State should be advancing human rights, not blocking them. “The State has to have a bloody good justification to limit an individual’s constitutional rights, such as society is going to collapse”. Instead, he said, the High Court’s ruling was based on the “apartheid-era” Drugs and Drug Trafficking of 1992, which in itself had been found to be unconstitutional.
The discussion, hosted by cannabis commentator Jeff Verlinden, also featured Andrew Macpherson of Brink Ward Attorneys, who represents THC director Neil Liddell. He said the court ruling went against the law of general application and this could be challenged constitutionally. “Essentially it rules out people who can’t grow their own cannabis and would rather go through a grow club model that offers a safe alternative”.
“The interpretation of the court ruling essentially is that the end-user must be the cultivator of the cannabis and that creates some patent absurdities. For example, if you are a paraplegic or in any way incapacitated and cannot grow your own, therefore, in this interpretation, you are barred from your right to use cannabis at home. If you cannot grow it, you cannot use it.
He said “the Court makes some rather strange remarks on that basis. With regards to the transmission of cannabis it relies on the Drugs Act, under which this is illegal, and therefore you have to use it where you’re growing it, and that’s not in keeping with the Prince 3 judgement.”
MacPherson said: “You are going to be in a position where you have a plant or two at home and a gardener splashing water on everything, and if he happens to splash water on your plant, then, in accordance with the definition of cultivation, which is also quite broad and encapsulates any process in the growing of a plant,… to take it to its illogical conclusion, then that gardener is guilty of dealing in cannabis, and subject to all the penalties associated with that. It’s….unthinkable”.
Verlinden said it all came down to “It's like, who’s plant is this? And you can’t ask anyone to help you grow it!”.
Kiechel agreed. He said that the “concept of joint co-ownership, say by a couple, of a property, of a house, only seems to become controversial when it applied to cannabis. If I’m the landlord and I’m renting a property to a couple who are co-growing cannabis, then in the narrow interpretation of the Drugs Trafficking Act, I could also be found guilty of dealing in cannabis.”
MacPherson said there was an obligation on the courts to do a “justification or limitation analysis” when dealing with laws that had a constitutional implication. “When you look at the Constitution you have to weigh up the limitation of a constitutional right and then the onus shifts to the State as to why that limitation should be justified and that includes an evaluation as to whether there is a less restrictive means of achieving the same outcome, and that is arguably is absolutely possible by allowing a collectivized or socialized growing method, whether it be a community garden in an underprivileged area or be that a grow club for people who can afford it, and anything in between.
“That to my mind is a very simple solution to an untenable interpretation of who can cultivate and use cannabis.
When asked “where to from here?”, MacPherson replied:
“It’s to carry on fighting for those constitutional rights and to take it onto the next step. The legal team is discussing the drafting of the application of leave to appeal, that’s in the pipeline. It has to be filed by 19 September, and once that’s filed the next step is to get it before the Supreme Court of Appeal. On our provisional time-line we are hoping to get that heard before the end of next year. Obviously, we are hoping for a quicker turn-around but we’ve got to be realistic with the pretty congested court system.”