The Haze Club (THC) landmark cannabis prosecution case may be on hold, but it’s clear that the Justice Department views private cannabis clubs as illegal (see story) and constitutionally unsound.
In an affidavit (see full affidavit here) presented to the Western Cape High Court, the head of the Western Cape Narcotics Squad put forward the following argument as to why THC’s activities are illegal. Lt Col Johan Smit says there are legal contradictions between the Constitutional Court ruling basically relating to the tension between the right to consume cannabis privately and current legislation that prohibits the sale of cannabis.
On behalf of the Ministers of Justice and Correctional Services and the National Prosecution Authority, Lt Col Johan Smit is also demanding that THC hand over documentation that its legal team believes is protected by attorney/client privilege. THC director Neil Liddell and employee Ben van Hout are out on bail on charges of dealing in cannabis, but prosecutors have agreed to hold back pending a High Court decision on the legality of PCC’s.
In his affidavit, Lt Col Smit makes the following points:
- The THC grow club model is fundamentally illegal because it was designed to supply cannabis to the general public and not just to members;
- That THC ‘owned’ the seeds and plants and not its ‘members’;
- Packets of ‘internationally-sourced seeds’ were found during the 13 October 2020 raid on THC’s Cape Town grow-op, and these were deemed not to be ‘owned by members’.
- Various other packets of seeds were found, some of which were not detailed as per THC’s own constitution and some of which were marked;
- By extension then THC was ‘guilty of selling seeds to prospective members’ and was therefore in contravention of the Drug Trafficking Act;\
- In the same vein, THC’s offer to provide ‘members’ with seeds or clones from a variety of strains, is indicative that ‘members’ were not supplying their own seeds for THC to grow; among the strains on offer from THC were:
- Blue Kush,
- Wonder Woman,
- Granddaddy Purple,
- Mo Rockin’ Kush,
- Lemon Haze,
- Harlequin Pride’.
- At issue, Lt Col Smit, pointed out was
- the relationship between growing clones or seeds for members in a ‘common space’ and the date of transfer where the seedlings would be transferred to a ‘designated members’ space’;
- and the transfer from a designated members’ space back to a ‘common space’ after harvest for drying and curing.
- That the THC grow-op was on public property and could therefore not be construed to be a ‘private’ club and that by extension
- the two accused could not be seen as ‘private cultivators’ and that
- The specialist equipment used to grow ‘members’ plants was owned by THC and there was no ‘membership’ involvement here;
- That the THC membership options allowed ‘non-members’ to easily buy cannabis, particularly through three of the five available membership options, namely:
- The “Strain Swapper” scheme;
- The ‘Share” scheme;
- The ‘Threesome’ scheme;
- That THC did not have the correct paperwork in place to prove that it was attempting to comply with constitutional provisions, particularly in relation to:
- Non-barcoding of stock;
- No clear identification of which member owned which stock or a proper record of its ‘seed bank’;
Lt Col Smit said that consequently:
- THC membership was open to the general public and not a class of members;
- Between ‘seed and sale’ there was a transfer of ownership of cannabis and therefore the plant could not be construed as being the member’s plant only;
- THC’s growing, drying and curing areasd were in a public and not a private space;
- THC’s cultivation was in contravention of Section 5 (b) of the Drugs Act;
- The delivery of ‘member’s finished product was also against the law;
- THC’s director and employee therefore should face criminal charges, and that
- Any person participating in a PCC was breaking the law because the whole PCC concept is illegal pending any change in the law.
Lt Col Smit also detailed in his affidavits that the THC director had co-operated fully with the police and gave them the right to search the Ottery grow premises insisting that it was legal. Lt Col Smit also said that the two accused had both said that the cannabis was not for their own personal consumption and therefore they could be guilty of dealing.
The affidavit states that THC’s legal model is flawed because, as quoted in parts of the affidavit below: