The Western Cape High Court ruling against the legality of private cannabis clubs (PCC’s) is already starting to have a negative economic impact. Woodstock private cannabis club Sensiva closed its doors last week, laying off five employees and halting all memberships and operations. 

As a result:

• Hydrobiz grow shop on the ground floor is having to lay off an employee and now has to seek other premises;

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• Biscara Coffee Shop has to retrench four staff members;

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• CannaKiosk has to lay off one person and the next door tattoo shop will see two jobs lost.

Hydrobiz CEO Brett Young told Cannabiz Africa on 13 September 2022 that the consequences of the court ruling would have a devastating impact on many people and businesses in the area, including his own.

“Look at the effect of the Court ruling in just one cannabis hub, here in Woodstock, an area where unemployment is high. The forced closure of a responsible and safe cannabis environment means 13 jobs are no longer in play. How many jobs are behind these 13? How many families are dependent on this one location?”

In his February 2022 State of the Nation Address, President Ramaphosa said he hoped a new, regulated cannabis economy would create over 130 000 jobs. This was echoed in the recently released Country Investment Strategy, which included cannabis for the first time.  However, serious job creation is unlikely until such time as a law is passed allowing for the commercial trade in cannabis and related products. And in the short-term, the future of up to 30 PCC’s and the people they employ, are in question.

Leading cannabis lawyer Paul Michael Kiechel of Cullinan and Associates says he understands the logic of Judge Hayley Slinger’s reliance on existing legislation to interpret  that PCC’s were a form of commercial trade. However, he believes her finding that PCC’s were in contravention of the unconstitutional Drugs and Drug Trafficking Act of 1992, threw the validity of the ruling into question.

The Haze Club’s lawyers are challenging her decision and are preparing to file an application to the Supreme Court of Appeal by 19 September 2022. Andrew MacPherson of Brink Ward Attorneys says the implications of the ruling “were absurd” and against the “law of general application”. He said a Supreme Court decision on the matter by the end of next year was the best that could be hoped for.

Kiechel’s view is that the Court decision has been a spectacular own goal. “The elephant in this room, is that why hasn’t Government capitulated on this matter. There is nothing preventing it from doing so, it didn’t have to fight this matter so hard. When it came across the desk of the State Attorney, and ultimately Senior Counsel, they could have looked at it, and said, hell this is a really good way of minimizing the harms of cannabis and allowing the aggressive realization of human rights that were hard won in the Constitutional Court in 2018”.

During a recent panel discussion on the implications of the Western Cape High Court PCC ruling hosted by Jeff Verlinden, Kiechel asked was who was actually calling the shots in determining the country’s cannabis laws.

“I don’t know who, and I don’t want to defame anyone in the process, but I do think you have a very conservative, prohibitionist decision-maker sitting somewhere saying absolutely not…..we’re not going to yield….we’re not going to give any quarter, and if - and when - we make the  decision as Government to afford our citizens human rights, well then that’s when we’re going to do it. But in the meantime were going to fight, and we’re going to fight hard. And I don’t understand it. And I think it’s worth taking to the streets to raise these issues”.

That is in fact what the recently formed Cannabis Mass Action Committee (CMAC) has called for mass protests outside Parliament and the Union Buildings this Saturday, 17 September at 10h00, to express dissatisfaction at the snail’s pace of cannabis reform.

The chief legal architect of both the Cannabis for Private Purposes Bill of 2022 and the Drugs and Drug Trafficking Amendment Bill of 2022 is Senior State Law Advisor Sarel Robbertse. He has admitted to Parliament that he is taking a very narrow interpretation of the Constitutional Court rulings of 2018 and 2022 to fix these two pieces of legislation, and that it is not in his remit to create a legal framework for the commercial trade in cannabis. His view is that cannabis should be included as an “undesirable, dependence producing substance” in Schedule 2 of the new Drugs Bill, despite the Presidency pledging to remove the regulatory barriers to cannabis reform.

Robbertse does not appear at all in the Department of Justice’s organogram – or is listed at all in the State Legal Development Department, where over 40 state lawyers are named, so it is unclear where he fits in - or who he reports to. The accountability of the State’s legal drafters has been called into question by Deputy Justice Minister John Jeffery who says he will raise the issue with the Department’s Director General.

CA