Laws that criminalise grow clubs are unconstitutional and infringe on people’s rights to cultivate and use cannabis privately. This is according to a high court application by the director of The Haze Club (THC), Neil Liddell.
Liddell and his attorneys launched a high court application on Tuesday morning. He is turning to the court to determine the legality of THC in light of the Constitutional Court’s 2018 judgment on the cultivation and use of cannabis.
THC follows what has become known as the “grow club model”. Members of the club buy their own seeds. After signing up, a member delivers the seeds to be grown and harvested by THC. This model means that the cannabis plant is at all times under the ownership of the member.
In South Africa, there are no laws presently governing or preventing the operation of grow clubs.
Liddell and his lawyers argue that denying access to grow clubs amounts to direct and indirect discrimation against people who do not have the land or the time to grow their own cannabis.
However, in October last year, the police raided THC after reportedly receiving a tip-off. Liddell and his employee, Ben van Houten, were arrested and charged with possession of a trafficable quantity of cannabis.
The South African Police Service (SAPS) alleged that officers confiscated 344 dagga plants, with an estimated six-figure value. SAPS confiscated and destroyed all of the members’ plants and cannabis.
According to Liddell, the police also confiscated The Haze Club’s equipment — lighting, irrigation, climate control, ventilation, nutrients and cleaning chemicals — and his personal laptop and phone.
“Almost nothing was left behind at the premises,” he says.
Liddell and Van Houten appeared in the Wynberg magistrate’s court, where they were both granted bail, set at R10 000 each.
The pair are now seeking a stay of criminal proceedings, pending a high court ruling on grow clubs’ legality.
In 2018, the Constitutional Court ruled that adults may use, cultivate and possess cannabis in private for their consumption. The apex court found that the criminalisation of the cultivation and possession of cannabis for personal use unjustifiably limits the right to privacy.
The court declared that laws prohibiting the cultivation and use of cannabis by an adult in private dwellings are inconsistent with the constitution.
An example of cultivation of cannabis in a private place is the garden of one’s residence, the court said.
“It may also be that one may cultivate it in a place other than in one’s garden if that place can be said to be a private place.”
Parliament was mandated to amend parts of the Drugs and Drug Trafficking Act and the Medicines and Related Substances Control Act to align them to the Constitution. The Cabinet approved the submission of the Cannabis for Private Purposes Bill to Parliament last year.
The Haze Club and other similar grow clubs, are consistent with what is set out in the 2018 judgment, Liddell contends.
“If the grow club model is legal now, it will continue to be so in the future, come what may,” he says.
Liddell argues in his affidavit that after reading the judgment, he realised that the grow club model could be a legitimate business opportunity. The model could also allow all South Africans to reap the benefits of the ruling regardless of their living conditions.
“The grow club model is founded on the idea that many people, particularly in urban metropolises, live in small houses or flats; many live communally, while a large portion of South Africa’s population live in informal structures,” Liddell’s affidavit reads.
“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.”
Denying people access to grow clubs also amounts to indirect discrimination based on race, Liddell says.
“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,” Liddell’s affidavit reads.
“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.”
Liddell consulted with his attorneys to determine the legality of the grow club model in South Africa.
“My attorneys and I then spent much time considering and dissecting the model to ensure that, in every respect, the business would operate legally. It would have been easy to ignore the laws and legal advice and operate according to what would bring in the most money. That, however, was not my intention.”
Because the 2018 judgment allows for cannabis to be grown in a private space for personal consumption, THC demarcates and subleases spaces to its members. Each lot constitutes a member’s private space.
The cannabis that a member collects from THC post harvest is the total of what has grown from the seed that the member provided to the club, Liddell says.
The plants grown in a member’s private space is limited to two plants. THC’s members use an app to trace their plants, which are barcoded.
The average yield from an individual plant using the particular growing methods employed by THC is 30g of dried cannabis.
THC limits the number of plants each member can own to ensure they are not abused for illegal resale purposes, Liddell says.
When the member’s plant has reached full maturity, it is harvested and moved to the drying room, where it remains for seven to 10 days. Once dry, the member’s plant is cured, which requires an additional seven days. After the curing process, the plant is packaged, and the member is notified that their plant is ready for collection or delivery.
“At no point in time does THC or its directors or employees ever take ownership of the seeds or plants … nor do they accept any remuneration of any kind for the provision of cannabis to a member,” Liddell says in his affidavit.
The services rendered by THC and its employees “relate only to professional horticulturalists to attend to the cultivation of said plants in the specifically designated rented spaces of each respective member”.
Liddell also contends that prohibiting grow clubs infringes on the constitutional right to freedom of trade, occupation and profession.
Horticulturalists or gardeners minding and caring for the gardens of persons who cultivate cannabis in their homes are entitled to do so, absent any legal impediment, he says. However, THC and its employees “are precluded from doing so for reasons that are unclear to me”.
The effect of the prohibition of the grow club model also infringes on the rights of members to their rights to bodily and psychological integrity, Liddell adds. “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.”
Grow clubs serve society by ensuring that members have access to safe, uncontaminated cannabis, Liddell says.
They also benefit the economy.
“By declaring the grow club model as lawful, in the format presented, the door opens to the many informal farmers, of cannabis or otherwise, to register formal, tax-paying companies, which could serve to employ skilled and unskilled workers throughout the cannabis production value chain,” Liddell says in his affidavit.
The model gives small-to-medium-scale enterprises the opportunity to participate meaningfully in the cannabis value chain, creating a large source of both employment opportunities and taxable income, he adds.
Liddell concludes that the grow club model presents a legitimate alternative to the illicit cannabis trade. Operations such as THC alleviate the burden placed on the state to regulate a growing market, he says.