Tag: south africa

In late 2018, South Africa’s Constitutional Court issued a historic ruling. In a case involving three cannabis consumers facing cannabis charges, South Africa’s top Court determined that cannabis prohibition “intrudes unjustifiably into their private spheres”.

“It will not be a criminal offence for an adult person to use or be in possession of cannabis in private for his or her personal consumption.” stated Deputy Chief Justice Raymond Zondo in the Court’s unanimous decision back in 2018.

Since that time, various lawmakers in South Africa have worked towards the goal of launching a legal, regulated adult-use industry. And while that has yet to happen, progress is being made, albeit slowly, with the latest example of that coming in the form of the South African government seeking public input about a new proposal. Per Business Tech:

The Portfolio Committee on Justice and Correctional Services has opened the proposed amendments to the Cannabis for Private Purposes Bill for public comments.

The National Assembly is now calling on interested stakeholders to write submissions on the proposed amendments by no later than Friday, 28 April 2023.

Ultimately, the proposed amendments seek to broaden the scope of the bill to include provisions relating to the commercialisation of hemp, the use of cannabis and its production.

The 2018 decision in South Africa has created a large ‘grey’ market that is popular with consumers, but completely unregulated. Similar court decisions were rendered in Mexico in late 2018 and in Italy in late 2019. Similar to South Africa, the grey markets are flourishing in both Mexico and Italy due to languishing regulatory efforts.

Lawmakers would be wise in all of those countries to pass and implement robust cannabis reform measures resulting in the legal cannabis industry being embraced rather than prohibited. All of those countries would benefit from job creation, boosts to local economies, and the public revenue generation that an embraced adult-use industry would yield.

Cannabis activism and advocacy can come in many forms. I have worked to reform cannabis laws for many years now and have helped promote cannabis activism efforts all over the globe, and I have seen countless strategies and efforts be effective.

The most logical form of cannabis advocacy is via the political process. Some areas have citizen initiative and/or referendum processes in which ordinary citizens can gather enough signatures from registered voters to put an issue on the ballot. For instance, that is what activists in Italy did recently, although the effort was eventually kiboshed by the nation’s top court on a technicality.

Another form of political cannabis activism is lobbying lawmakers. In areas where there is no signature gathering mechanism to change laws, educating and convincing lawmakers to reform cannabis laws is a worthwhile effort. Although, there are obviously times when the lobbying route proves to be a dead end, as some lawmakers cannot be reasoned with. When that happens, litigation is about the only other viable option.

Legal challenges to prohibition can work, as evidenced by landmark rulings in Mexico, Italy, and South Africa in recent years. In the case of South Africa, prohibition as it pertained to personal use was overturned and quickly implemented, however, the creation of an adult-use industry has lagged.

Activists in South Africa are now planning yet another legal challenge, this time focusing solely on individuals being able to participate in the adult-use cannabis industry. Below is more information about it via a news release from the organization behind the new effort, Fields of Green for All:

In 2017, three plaintiffs (Julian Stobbs, Myrtle Clarke, and Clifford Thorp) met seven government departments (“the state parties”) and the intervening Doctors for Life (“DFL”) in the Pretoria High Court for the commencement of the Trial of the Plant (the “TOTP”). After days of evidence, the TOTP was rendered part-heard because of the state parties and DFL ambushing us with many thousands of pages of evidence, which, upon later analysis, supported far more than it hurt us.

We went on to intervene at the level of the Constitutional Court in the consolidated cases brought by Ras Gareth Prince, Jeremy Acton, and others, which culminated in the 2018 Judgment that saw the effective decriminalisation of the personal and private use, possession and cultivation of Cannabis in South Africa and which afforded our Parliament two-years to replace the legislation struck-out as being unconstitutional. Then, we waited.

In the background, since 2014, Fields of Green for ALL NPC has been assisting Cannabis users, cultivators and traders to get stays in prosecution pending the outcome of the TOTP. There are now over 100 cases waiting in the queue with Myrtle.

Four years have now passed since the 2018 Judgement (as have, tragically, the lives of both Stobbs and Thorp) but we feel no closer to a reasonably regulated trade in South African Cannabis than we were back in 2017, when fighting the TOTP. There are now calls for an ‘evidence-based’ policy and, despite it being the constitutional responsibility of the state parties to evidence the harms that they allege that they want to protect us from, it seems obvious to us that we need to drag the prohibitionists amongst us back to Court if we are to get us over the line anytime soon.

So, today, off the back of last week’s mass action, we announce the launch of the Trial of the Plant 2.0 (the “TOTP2”) – being the re-opening and continuation of the original TOTP. We will be meeting with our lawyers from Cullinan and Associates and narrowing our challenge so as to not fight over territory already gained. Our focus, fundamentally, will be to ensure that anyone who wishes to is allowed to earn a living through Cannabis, as so many are hypocritically permitted to do through the cultivation of and trade in everything related to alcohol and tobacco. In addition, we plan to eliminate some of the rats and mice left behind by the 2018 Judgment – which seemingly provide quarter to the state parties and their agents to trample on our hard-won human rights.

We cannot do this alone. Only through generous donations (both of money and expertise) were we able to get as far as we did in 2017 and 2018. Back then, many didn’t take us seriously, but now they know what’s possible and that we’re their best bet. It’s time to treat the funding of this final push as a strategic investment. Spending a little now will help us to unlock the full potential of a sunrise industry, in which there will be space for you, your business and the businesses of your compatriots. Help us to help you – we are stronger together.

More information will follow by way of updates as this all unfolds. #TOTP2. Watch this space.

A personal note from Myrtle Clarke:

“Since the devastating events of the early hours of 03 July 2020, there has been no investigation into Julian’s murder. There remain 2 pieces of paper in his file at the Diepsloot Police Station and those pages are my statement. Yet, the South African Police Service continues to harass, profile, arrest, incarcerate and extort members of our peaceful Cannabis Community. Enough is enough.”

An employment case over personal (and medical use) has caught the attention of a country in transition on cannabis reform

The issue of cannabis use and employment is a sticky one. For Americans old enough to remember it, mandatory drug testing for most kinds of employment became a reality in the late eighties and early nineties. Cannabis users, because of the length of time the metabolites stay in the human body, were affected the most.

Now, as the White House is criticized for subjecting its staff to zero-tolerance policies, but the states are moving forward on eliminating this kind of discrimination, the topic is starting to show up elsewhere and in jurisdictions where cannabis reform is moving forward on a federal level.

In South Africa, a woman has just lost a case before a Johannesburg Labour Court on the claim that she was discriminated against and fired illegally for using cannabis while not on the job. She worked in an administrative office position from which she was fired after she had repeatedly tested positive for use – albeit not during working hours. She also testified that she had used cannabis for both medical and spiritual reasons.

The court cited her lack of medical evidence as cause to deny her a discrimination claim as well as the existing zero-tolerance policy of the employer. More tellingly, however, the judge also ruled that to have ruled in her favour would have created a precedent that would impact the company unfairly.

Medical Use, Employment Policies and Reform

The timing of this case is certainly interesting, given the fact that South Africa is moving ahead with at least medical reform – and in a very big way. Beyond this, the country’s Supreme Court has ruled that personal use cannot be criminalized. This would, one would assume, also include negative repercussions in other areas of life – and labour law is also of course considered to fall under the civil rights section of every cannon of written law.

As a result, it may well become a bellwether case.

The ability to find a prescribing doctor in South Africa, as it is elsewhere, remains not only difficult but expensive. Yet courts (everywhere cannabis laws are reforming) are only slowly coming to this understanding.

The unwillingness in this case to set a precedent – and further under such conditions – seems destined to make sure that this will indeed be a case that is remembered. Namely as one which penalized someone for medical use – up to and including the loss of long-term employment.

In the fall of 2018, South Africa’s Supreme Court determined that cannabis prohibition as it pertained to personal use by adults in private settings was unconstitutional. While the decision did not extend to many other parts of cannabis policy, lawmakers in South Africa used it as an opportunity to completely overhaul the nation’s approach to cannabis policy and industry.

Similar court decisions were rendered in Italy and Mexico to some degree, however, lawmakers in those countries have been very slow to move policy beyond the individual Court decisions.

South Africa, on the other hand, has really stepped up efforts to embrace the cannabis plant and the industry that surrounds it. As we previously reported, South Africa’s government is currently accepting proposals for cannabis businesses and recently approved the country’s first cannabis pharmacy.

In yet another example of the shifting cannabis landscape in South Africa, the nation’s Department of Justice recently announced that it should not oversee the emerging cannabis industry. Instead, its recommendation is that other agencies that oversee other large, legal industries perform that task. Per Business Day:

The department of justice was not empowered to introduce legislation dealing with the commercialisation of cannabis, as that fell within the domain of other departments such as health, agriculture, and trade, industry and competition.

On Tuesday, the department of justice’s legal adviser, Sarel Robbertse, gave the department’s response to public comments on the Cannabis for Private Purposes Bill, in a briefing to parliament’s justice and correctional services committee…

It will be very interesting to see where South Africa’s cannabis industry is at five years from now, and how much farther along it is compared to other countries within the global cannabis community.

South Africa is one of at least three countries that had landmark cannabis court rulings issued in recent years that determined national cannabis prohibition to be unconstitutional. Mexico and Italy also had similar court decisions rendered by their top courts around the same time.

For the decision in South Africa specifically, the Court determined that cannabis prohibition as it applied to personal possession and use by adults was unconstitutional. Unfortunately, the Court did not address prohibition policies as they apply to youth.

A lower court previously determined that cannabis prohibition was unconstitutional for youths, and this week South Africa’s top court heard arguments regarding the issue. Per IOL:

Pretoria – The Constitutional Court will hear arguments on Thursday, for the decriminalisation of the possession and use of cannabis by children.

In 2020, the Johannesburg High Court declared provisions of the Drugs and Drug Trafficking Act unconstitutional in so far as they criminalise the possession and use of cannabis by children.

The Centre for Child Law will today ask the Constitutional Court to confirm the high court order.

There is absolutely no reason for youth to ever be treated as criminals for acts that only involve cannabis. Cannabis prohibition is part of the school-to-prison pipeline that has ruined so many lives across the globe, and it’s a practice that needs to be ended immediately.

This is not to say that children should be allowed to smoke cannabis in the streets of South Africa unimpeded. Youth consumption is an issue that should always be taken seriously. However, public policy needs to be based on science, compassion, and logic.

The best approach for governments when it comes to youth and cannabis involves being honest and informative. Scare tactics do not work, and putting youth into the criminal justice system all but ensures that they will be in the system for years to come, possibly for the rest of the youth’s life. Hopefully South Africa’s top court does the right thing and renders a favorable decision.