Haze Club appeal granted

We have previously written about the events involving the Haze Club since their arrest in October 2020 and leading up to the Haze Club appeal application – refer back to this blog and this webinar to get caught up.

The latest is the good news that leave for appeal (the Haze Club appeal) has been granted and that the appeal will be heard by the Supreme Court of Appeal, a decision that was mostly expected by the community at large. Nevertheless, it is confirmation that the fight for the Grow Club Model (and Private Cannabis Clubs in general), is not yet over.

Grounds for Appeal

The Haze Club’s legal team at Ward Brink Attorneys, spearheaded by Andrew Macpherson, focused the Haze Club appeal on the judgment of the alternative relief – the fact that current legislation relating to Cannabis use unjustifiably limited rights to trade, profession, security and dignity of the person. They’ve filed various grounds for appeal, some of which we’ll briefly discuss here:

The court erred in finding that no evidence was submitted relating to failed cultivation attempts by members of THC

In par 62 of her judgment, Judge Slingers stated that none of the THC members who submitted affidavits, referred to having “attempted to cultivate their own cannabis for private use but failed”. The Haze Club appeal application refers to evidence stated in their declaratory order application relating to the practical difficulties of cultivating Cannabis in small spaces that are generally accessible to children and the equipment required to create appropriate environmental conditions indoors for those without space outdoors. The disconnect between the reality of most South Africans and the theoretical assumption that Cannabis can be easily cultivated in limited spaces, was again highlighted.

There is no limitation in the Prince Judgment relating to horticultural gardening services or assistance

The team noted here that the court ought to have found that the effect of the Prince judgment was that “if a person grows Cannabis in a private space (for example, their home) for their own private use and, in doing so, utilises the services of a gardener or horticulturalist (to attend to the entire garden), there is no impediment in law to doing so.” Simply, there is no prohibition on a gardener working in a private space where Cannabis is being grown.

Membership fees are not irrational when compared to the illicit market

Judge Slingers stated in par 68 of her judgment that the Applicants’ claim of unfair discrimination based on race was “opportunistic and falls to be rejected”. In the Haze Club appeal application, the team performed a comparison of THC membership fees and cannabis prices on the illicit market. They’ve used the Haze Club’s threesome option as example – in this package, a member would obtain 10 grams every two months, at a cost of R485 per month, meaning a cultivation fee of R970 would yield them 10 grams. On the illicit market, a gram of indoor Cannabis can easily be sold for R150 – R250, meaning 10 grams would cost anywhere between R1500 – R2500.

The court erred in accepting the concession of the Respondents (SAPS) that the right to choose a profession or trade was limited

Instead, it is stated that the court “ought to have found that the issue of the purchase of cannabis was not at issue in this matter” and that the court should have noted the fact that THC is not a large scale provider of Cannabis, despite occupying a large-scale space. Furthermore, this and the fact that some members indeed stated that, in the absence of THC, they would obtain Cannabis from the illicit market, does not mean that sanctioning the Grow Club Model could potentially mean sanctioning dealing. In their defense, the team highlighted the facts that the Cannabis is cultivated in a private place, that ownership does not change hands, that the Cannabis is not provided to other persons and that there is no sale of Cannabis taking place.

Other notable grounds

The team additionally referred to the required balancing of two sets of interests, referring to the court’s finding that there was no reasonable and justifiable limitation for the added infringements by the Respondents. “On the one hand, there is the right that is limited: its nature; its importance in an open and democratic society based on human dignity, equality and freedom; and the nature and extent of the limitation. On the other hand, there is the importance of the purpose of the limitation. What must be assessed overall, is whether the limitation is proportional… and whether it is reasonable.”

Other arguments previously made were reiterated such as the fact that “(a) the Grow Club Model is not aimed at trade nor does it fuel an illicit trade in cannabis; (b) no basis has been laid as to why the Grow Club Model presents a greater risk in respect of these consequences than other (permitted) models for cultivating cannabis; (c) the State’s position in this litigation is irreconcilable with the policy position taken by the State and as set out in the Master Plan.” This refers to one of the National Cannabis Master Plan‘s objectives being the creation of “an inclusive, sustainable and globally competitive Cannabis industry in South Africa”.

The Haze Club’s Application for Leave to Appeal can be read here:

Judge Hayley Slingers’ judgment, granting leave to appeal, can be read here:

Leave a Reply

Your email address will not be published. Required fields are marked *