/ 22 September 2022

Cannabis activists head to court as Ramaphosa’s green dawn stalls

Four years after cannabis was decriminalised, there is still no legal framework for trading in the plant. (Photo by Gallo Images/Alet Pretorius)

A group of cannabis activists are preparing to go back to court to force the government to pass legislation creating a legal cannabis industry, four years after the constitutional court ruling decriminalising private possession and cultivation of the plant.

The failure of the state to create an enabling environment for the South African cannabis industry is preventing the take off of president Cyril Ramaphosa’s much-publicised green revolution, which he has punted in successive state of the nation addresses.

The cannabis industry is estimated to turn over around R28 billion a year, but trading remains illegal, despite personal cultivation, possession and consumption for personal, private use getting the nod from the country’s highest court.

Now Myrtle Clarke, one of the applicants in the constitutional court case, is approaching the high court in Pretoria to continue with a part-heard challenge to the validity of the Drugs and Drug Trafficking Act and other legislation, which was adjourned sine die in 2017.

Clarke, her partner, Julian Stobbs and Clifford Thorp, had gone to challenge the validation of existing legislation in what was commonly known as the Trial of the Plant, and had also intervened in the constitutional  court matter.

After the 2018 ruling, which gave the government two years to draft new legislation addressing the unconstitutional nature of existing laws, the group decided to wait for the legislative process to take place.

However, four years later the Cannabis for Private Purposes Bill, which is currently before parliament, has still not been passed and has been sent back by MPs as it continues to criminalise the sale of cannabis and impose a jail term, rather than treating the plant in the same way as alcohol and tobacco.

Clarke told Mail & Guardian this week that Field of Green for All, the NGO she founded along with Stobbs, who was murdered on their Gauteng smallholding two years ago, decided to go back to court because of the state’s failure to draft and implement laws creating a legal cannabis industry, four years after the constitutional court judgement.

Clarke and Stobbs were charged for dealing in cannabis in 2010 after a police raid on their premises seized just over 1kg of cannabis. 

They were released on bail of R1 000 but the matter – and more than 100 other cases – has been placed on hold due to an application for stay of prosecution brought by Fields of Green.

“It will be four years on Sunday since the judgment. When it came out, we decided to wait and give the state time to implement the court judgment. People are still being arrested for trading in cannabis and there has been no real progress in drafting legislation so we have decided to go back to court,”  Clarke said.

She said that when the 2018 judgement was delivered “when they said no trade will be allowed our hearts just dropped because we knew that the cops wouldn’t stop arresting people. This is exactly what has happened”. 

“So the constitutional court judgment really has just set us back. It was a lukewarm judgment. There are now more than 100 people who are out on bail and facing charges of racketeering and money laundering, and who have had their assets seized frozen, for trading in a legal plant,” Clarke said.

Last weekend cannabis activists held a series of protests to try and push the government to speed up the process and introduce interim measures legalising the cannabis trade while the legislative backlog is addressed.

Earlier this year, Ramaphosa appointed former department of trade and industry deputy director general Garth Strachan as policy head to advise the government on how to proceed with developing a legal and administrative framework for the industry.

Clarke said they were setting up a strategic fund to pay for the case – which she hoped to get back on the high court roll by the end of the year – and to assist with a number of other legal actions which had been brought  before the courts by other individuals and organisations in the cannabis industry.

Paul-Michael Keichel, the attorney representing Clarke, said they were going to court to force the state to enact legislation to allow South Africans to earn a living from the cannabis industry.

“We have the president in his SONA  saying yes, we are going to unlock this industry and create jobs…yet it just seems like a lot of talk and a lot of perpetual imminence,” Keichel said.

“In the meantime, people are arrested on a daily basis and dragged through the criminal justice system and have their lives ruined, which is shameful.”

Keichel said they were “done waiting for the government to do the right thing”  and would go back to court to challenge the constitutionality of the Drugs Act and other laws which currently prevent cannabis trading.

“We have already won the personal and private right to use, cultivate and possess cannabis. We are now going for the right for the average South African, who is not a pharmacist or a doctor, to be able to earn a living through cannabis,” Keichel said.