Paul Michael Kiechel of Culllinan and Associates says the Western Cape High Court’s dismissal of the THC application to recognize the legality of private cannabis grow clubs, was reliant on the apartheid-era Drugs and Drug Trafficking Control Act of 1992. 

He said while it was understandable that court rulings had to take existing legislation into account, the fault lay with state lawyers who essentially had a prohibitionist view around cannabis legalization that flew in the face of Government policy.

Kiechel made the comments on 7 September during an online panel discussion on the future of private cannabis clubs following the recent 'disappointing' High Court ruling. He appeared with Andrew MacPherson of Ward Brink Attorneys who bought the application on behalf of THC director Neil Lidell. It was hosted by cannabis commentator Jeff Verlinden.

“The Drugs Act requires an entire overhaul” said Kiechel, who pointed out that the Act criminalized the whole plant, not just the psychoactive parts of it. “We can amend the definition of the plant which in the Drugs and Drug Trafficking Act does not include the non-psychoactive parts of the plant, such as seeds. So where am I meant to get the seeds from to exercise my constitutional right to grow cannabis at home if the law says that will be an illegal drug deal.

“There are all these absurdities, so a start would be to change the definition of cannabis and then that would buy us the time to negotiate with Government and for Government to engage with the various experts and draft an over-arching cannabis law that would addresses all of these absurdities and all these out-dated apartheid era laws.”

Kiechel said there were two core issues at stake: “It’s two-fold. Not only is it Government’s  inaction we should be protesting about - we ought very soon to be taking to the streets and letting Government know what our opinion, needs wants and desires are - but it gets worse than inaction.

“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”.

He said “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 were 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”.

MacPherson said there was actually a straightforward solution: legalize and regulate private grow clubs as a means of allowing people to exercise their constitutional rights to consume cannabis privately.

“The State has to have a bloody good reason to limit constitutional rights. There’s a very easy way of doing this, and it was referred to in the Prince 2 judgement; that by regulating the industry -which is not as difficult as the State makes out in the Haze Club case, there is no reason a new category for grow clubs can’t be created.

“The capacity is there, the infrastructure is already in place and that would constitute a far less restrictive means of allowing people to exercise their constitutional rights.”

Verlinden said there was the issue of consumer safety, and that a regulated grow club model could be a way of protecting consumers against bad product. He said the court ruling took the view that growing cannabis privately was simply throwing a few seeds in the ground.

“If we are trying to create 130 000 jobs like the President said, then surely the jobs would require some form of skills training for there to be meaningful careers, not just putting pot plants out into the sun. It’s a lot more nuanced and to downplay this is somewhat dismissive of an entire industry that has created hundreds of thousands of jobs globally.”

MacPherson agreed: “It’s an important topic. In the THC case the courts seem to follow this argument that you can simply throw a seed into a pot and grow it on your windowsill or in a township back yard, But we all know that’s not how things really work.

“They dismissed the argument that specialist knowledge or tools are required to grow cannabis, basically implying you can grow this in a pot your windowsill.  That said, when we looking at what the State is saying out the other side of its mouth with the National Cannabis Master Plan, there’s already a government agency being set up to train communities support traditional farmers and look at how they could be integrated into the formal economy by educating them on what they need to meet regulatory threshold.

“So, that’s implying you need to be trained, you need to have access to certain materials; and then on the other hand the State is saying, no, no, just throw it in the ground.

"You wouldn’t say to a drinker ‘go and brew your gin in the bathtub’, you wouldn’t say to a person who smokes cigarettes ‘grow your own tobacco’. We know that these processes aren’t safe, and if they were safe we wouldn’t be sitting with all these regulations governing their manufacture and sale.

“So, it’s unclear why we are making this big fuss here. The State is saying you need to be educated and there is a process in place". 

He said there was provision in the Cannabis for Private Purposes Bill for the future commercial trade in cannabis and that private clubs may be licensed as such in other legislation.

“But who knows how far away that might be?” he mused.

CA