South Africa: Cliffe Dekker Hofmeyr Representing Client Haze Club To Push High Court On Private Cultivation Precedent

A leading law firm in South Africa is applying to the high court to set a further precedent on the legality of private cultivation, possession and consumption of cannabis, as provided for by the 2018 Constitutional Court judgment. Reports IOL South Africa

Senior associate Andrew MacPherson and associate designate Shaad Vayej from Cliffe Dekker Hofmeyr (CDH) said the firm will be representing its clients, The Haze Club (THC).

CDH has approached the Western Cape High Court for an order confirming that THC’s cannabis-growing model is completely legal as it is in line with the 2018 Constitutional Court judgment and does not transgress any laws.

The pair said THC uses a model internationally known as the ’’grow club model’’. This means an entity leases a space dedicated to becoming a grow area for cannabis.

Along with leasing the space, the grow club will also provide professional horticultural services to its clients for anything being grown in the leased space.

A client is not provided with seeds and will have to give the club seeds to plant. However, clients will be limited to the seeds that can be cultivated within their allotted space on the property.

What is grown in the leased space remains the private property of the client.

The seeds will be planted and each client will receive a barcode. This will allow the client to track the progress of the plant, which clients can access by downloading a mobile phone application (App).

A set monthly fee is applicable for the upkeep of the cannabis plants/seeds.

At no point does the grow club ever own the plant. When the plants are fully grown, the client can collect or courier them.




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“In 2018, the use and cultivation of cannabis was decriminalised in private for personal consumption, meaning you can grow your cannabis in private and you can smoke it in private.

“Obvious questions that arise from that are: I don’t have a garden, I am a doctor and I work 48-hour shifts or I live in a township and I can’t secure the site away from minor children.

“Already on this basis you run into some issues and the law is not equally as accessible to everyone who wants to use it,” MacPherson said.

He said growing cannabis is not like growing tomatoes that can grow with only sun and water.

MacPherson said there is much underrated care in cultivating cannabis and that it is in effect a proper job. He said the equipment, chemicals and plant treatments and lights, as well as lights required in cultivation are costly.

He said if one cannot grow cannabis, how, in terms of the law are ordinary citizens supposed to get cannabis to use at home.

Vayej said the effect of the judgment was to remove cannabis from the drugs and illicit trafficking act for private cultivation and consumption.

“It is still illegal to buy and sell cannabis. The way the law stands and because it is currently difficult for people to access quality cannabis to whatever needs they have to be met, and the fact that you cannot buy or sell cannabis or seeds, means that the existing black market is being reinforced.

“This version of the model has been vetted and practised to ensure that there is no room for fronting (simply dealing in cannabis) but is as transparent and accountable as possible,” Vayej told African News Agency.

The pair said this grow club model could bring about economic growth as it offers a legitimate means of outsourcing the growing of one’s cannabis to a professional, tax-paying, accountable and transparent organisation.

Taking into consideration the international precedent, the cannabis market is a multibillion-dollar industry.

They said because other countries are on the forefront, South Africa is losing investment potential as it has the perfect climate to cultivate cannabis.

MacPherson said the way the law stands, police are required to use their discretion on whether the quantity of cannabis found is considered to be personal or trafficking and said there is still no clarity on a specified amount of cannabis in the legislation.

This take on the law comes after their client, director of the THC was arrested after police swooped on a property where cannabis was being cultivated.

However, the pair said before they focus on the criminal case, they will submit the application asking the state to temporarily halt the criminal charges against their client.

The application also asks the court to consider this grow club model to find it lawful and legal. They argue that, if it is found to be illegal, then those laws preventing it from being legal are unconstitutional.

“THC are entrepreneurs and trying to make money in the cannabis space within the ambit of the law.

“If we win our case, it will be the first example of the commercialisation of recreational cannabis. Currently there is nothing at present to run a commercial operation for recreational cannabis,” MacPherson said.

If this growth club model is found lawful, it will be able to use this order as a template.

CDH has already filed its motion on Tuesday at the high court.


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