The Haze Cannabis Club has filed a motion in the Cape High Court seeking to have its grow model declared legal. Failing this it wants sections of the Drugs and Drug Trafficking set aside, arguing that they are constitutionally invalid.
The motion was filed on 2 February 2021 and the case against THC director, Neil Liddell, and an employee has been postponed to April 2021 pending the High Court decision.
A founding affidavit by Liddell said that he, and an associate, had been arrested when the business was raided in October last year and were charged with drug dealing.
“[Police] confiscated and destroyed all of the members’ plants and cannabis (in various forms depending on the respective state of any member’s plant’s growth cycle) present in the premises,” Liddell said.
“Furthermore, during the arrest, I witnessed the confiscation of all THC’s equipment which included lighting, irrigation, climate control, C02 tanks (not belonging to THC), ventilation, nutrients and cleaning chemicals… Almost nothing was left behind at the premises.”
In his affidavit, Liddell contended that in arresting and charging people like himself, “the State is causing more harm to society than it is preventing, as we were fulfilling the vital role of ensuring that quality cannabis was ending up in the hands of those who made the permissible adult decision to consume it”.
“The grow club model thus allows those members of society who are particularly vulnerable to the adverse effects of poor quality and/or contaminated cannabis, to obtain their private cannabis in a manner befitting the safety standards required for consumption… This reduces the harms of cannabis consumption and instead, aligns with government policy.”
“The disparity that is created between the 2018 judgment (and the beneficiaries of it), on the one hand, and the members of a grow club model on the other hand is one that also results in indirectunfair discrimination on the ground of race,” he said.
“This is so because, I respectfully submit, given the history of apartheid, poverty and access to resources are disproportionately skewed along the lines of race. The effect of this is that black persons and persons of colour who are disproportionately persons in lower income brackets and therefore often relegated to informal settlements or apartments (where they are not able to grow cannabis in their private spaces) are denied the benefit of the 2018 judgment.”
He said he had been advised this amounted to indirect unfair discrimination.
“Cannabis is often used as a relaxant, bringing emotional and mental pleasure to the users of it. To that end, I am advised that the effect of the prohibition of grow club models is to infringe the rights of the members to their rights to bodily and psychological integrity, which includes the right to security in and control over their body…
“Persons who have the benefit of being able to cultivate cannabis in their private spaces at home face no such restrictions in respect of the use of such cannabis. Yet, members of the grow club model are deprived of the opportunity to make such choices.”
Liddell said he had further been advised that this equated to an infringement of a section of the Constitution.
He was of the view that there were several benefits to the grow club model, including job creation.
“[It] presents… the opportunity for small to medium scale enterprise, to participate meaningfully in the cannabis value chain, creating a large source of both employment opportunities and taxable income…
“By allowing a legitimate format of commercial cannabis growing, many existing growers who have been meeting the local demand, albeit illicitly, now have the opportunity to supply consumers through legitimate, taxable channels.”
Liddell stated that after the 2018 Constitutional Court judgment he realised that the ‘grow club model’, which has been successfully implemented all across the globe, could constitute a legitimate business opportunity and also play a role in assisting all South Africans to be able to reap the benefits of the 2018 judgment.”
The model was founded on the idea that many people lived communally or in small houses, flats, and in informal structures.
“These living conditions mean that certain categories of persons are unable to enjoy being able to cultivate cannabis for personal consumption as they are now so entitled to do,” Liddell said.
“In addition to this, there are other members of society who are disabled in one way or another, who do not have the know-how or the tools and/or do not even have the time, to learn how to grow cannabis and take the plant from seed to harvest.”
“Ultimately, I was advised that the model and the implementation thereof, does not violate any statute if done correctly,” he said.
“This, in and of itself, is demonstrative that I lacked animus to break the law. My attorneys and I then spent much time considering and dissecting the model to ensure that in every respect, the business would operate legally.”
“While there are no regulations or guidelines as to how to operate a grow club, it is THC’s view that grow clubs should be subjected to audits in terms of which the club must be able to demonstrate the ownership and history of every seed and plant,” Liddell said.
“Track and trace systems, such as that designed and built by THC, should be mandatory for any grow club. The THC System, therefore, tracks the history of each plant in order to show every action that has occurred throughout the lifecycle of the plant.”
“However, in South Africa at present, there are no laws governing the operation of grow clubs. There are also no laws preventing its operation.”