South Africa is Now on the Verge of Cannabis Legalization

South Africa’s history of State-sponsored segregation has taught cannabis activists there to avoid the pitfalls of botanical segregation and embrace the eons-old history of use by indigenous people. While countries around the globe struggle to re-regulate, commodify and capitalize on the plant’s resurgent legitimacy, South Africa could be poised to become a beacon of reefer sanity.

The War Against Cannabis in South Africa

In the late 1930s, an international campaign against marijuana was led by Harry Anslinger, the reviled United States Treasury official and head of the Federal Bureau of Narcotics. Anslinger is widely credited for instigating cannabis’s worldwide criminalization. It is, however, likely that Anslinger was inspired by the words of J.C. Van Tyen, secretary to South African Prime Minister Jan Smuts, in 1923. In a written statement presented to the League of Nations, Van Tyen implored the international body to include cannabis on its list of “dangerous drugs” as part of the International Opium Convention. “I have the honour to inform you that, from the point of view of the Union of South Africa, the most important of all the habit-forming drugs is Indian Hemp or ‘Dagga’ and this drug is not included in the International List,” he wrote. His recommendations were accepted at the League’s Second Opium Conference of 1924, and became international law in 1925.

Before the League of Nations was formed in 1920, anti-cannabis sentiment had been brewing in South Africa for decades. Section 70 of Law No. 2 in the 1870 criminal code is, according to many scholars and activists, the world’s first explicit law “prohibiting the smoking, use, or possession by, and the sale, barter or gift to, any Coolies whatsoever, of any portion of the hemp plant (Cannabis sativa).” While cannabis use by white and indigenous people was not vilified, use by “coolies,” the then-popular pejorative used to describe slaves from India, was seen by the Natal Indian Immigrants Commission as an impediment to the province’s health, safety and economic growth.

A report by the commission published in 1887 described Indian slaves under the plant’s influence as suicidal, homicidal, listless, incontinent, incoherent and inflicted by other maladies that acutely affected “the constitution of Indians.” Reefer madness was diversified with the passage of the Cape Colony’s Act 34 in 1891, which similarly lambasted the effects of cannabis use by “coloureds.” Falling in line with Harry Anslinger’s international exhortations against marijuana, South Africa escalated its reefer-madness campaign with the passage of the 1937 Weeds Act, compelling property owners to eradicate wild hemp from their land or face financial penalties and imprisonment for second offenses.

Shortly after World War II, South Africa’s National Party took the reins of government and instituted the apartheid system, entrenching division in an already segregated society ruled by white descendants of Dutch and British colonialists. Even though they made up nearly 80 percent of the population, non-white people were forcibly and systematically segregated from white areas, denied access to myriad employment opportunities and denied the rights to vote, own land or marry white people. That system remained in place until 1994, when the militant saboteur turned political activist Nelson Mandela was released from prison after serving 27 years and became president. Mandela not only ushered in an end to apartheid, but hastened the passage of a new Constitution in 1996 that is viewed by many as the world’s most progressive, open and protective of civil liberties and human rights.

Before that could happen, however, the apartheid regime passed laws that vilified cannabis users including the Medicines Act in 1965 and the Rehabilitation Act in 1971. In that year alone, 70,000 black men were arrested on “dagga” charges. The 1992 Drugs and Drug Trafficking Act (Drugs Act) served as the apartheid regime’s final strike against cannabis users, codifying asset and property forfeiture, incarceration and other penalties. After its passage, anyone in possession of more than 115 grams of cannabis would be considered a dealer and was subject to harsher sentencing guidelines.

An Alliance That Changed Everything

While most nations and states reform cannabis laws through political channels, South Africa’s decriminalization process was mandated through the judicial system. On September 18, 2018, South Africa’s Constitutional Court, the highest in the Republic, decriminalized cannabis use and possession in private spaces. The Constitutional Court imposed a two-year deadline for Parliament to enact new laws. What comes from this is anyone’s guess, but if the activists who started the change have their say, South Africa is poised to create the world’s most progressive cannabis regulatory system.

The Law Student

After successfully completing his legal studies in 1997, Gareth Prince, a Rastafarian, was denied a law license. Years before, he had twice been arrested for cannabis possession. While these convictions did not necessarily bar him from becoming a lawyer, he told the South African Law Society he was going to continue using cannabis because his religion required him to do so. Subsequently, the Law Society took the view that anyone who declared an intention to continue breaking South African laws was not “a fit and proper person” capable of joining its ranks because it “may bring the profession into disrepute.”

In order to get his law license, Prince first sued the Law Society and later added the minister of justice, the minister of health and the attorney general of the Cape of Good Hope as respondents. Prince first tried to represent himself, arguing that the Drugs Act discriminated against Rastafarians’ religious rights, but committed procedural errors that eroded the credibility of his case. In a last-ditch effort, he hired a professional legal team, who added aspects of the Medicines Act to his appeal on the grounds that the Drugs Act violated South Africa’s new Constitution, but the damage had been done.

The court considered but didn’t buy Prince’s use of Rastafarianism as cause for an exemption from the Drugs or Medicines Acts. The majority judges asserted that “neophytes” would join the religion as a way to use cannabis legally. Additionally, the logistics of policing an exemption for Rastafarians were simply too complicated for the court to bear. “Consider the dilemma of a policeman who finds cannabis in the possession of a person who claims to be a Rastafarian. How can he be sure that the claim is valid?” Interestingly, Prince cited how Nelson Mandela had been allowed to practice law despite his conviction for conspiring to overthrow the state. The judges rejected this argument because Mandela had no intention of continuing his work as a militant saboteur. In May 2000, Prince lost his appeal in a 6-5 ruling and was ordered to pay court costs incurred by the Law Society. In its denial, the Law Society told Prince that he would not only have to wait for Parliament to decriminalize cannabis, but would need to appeal to South Africa’s Constitutional Court.

With religious grounds off the table, a new challenge was needed. Instead of discrimination, privacy became the lynchpin that has partially decriminalized cannabis in South Africa.

The TV Producers

Myrtle Clarke and Julian Stobbs were successful filmmakers who made documentaries, commercials, music videos and movies for most of their adult lives. Both were, and still are, avid cannabis users. They were comfortable, white, upper middle class, and owned a lovely home in Johannesburg. All of that was put in jeopardy when police came banging on their door at 2 a.m. one night in 2010. In his underwear and groggy from sleep, Stobbs opened the door, allowed them inside and admitted there was cannabis on the premises. The couple were separated, strip-searched and interrogated until dawn. Over and over, the police demanded to know, “Where’s the drug lab?” For two hours, police jammed a gun in Stobbs’s cheek, all the while ransacking the place looking for a “drug lab” that wasn’t there.

Clarke and Stobbs were eventually hauled off to a local police station and kept in fetid, separate cells until their release later that day on a 1,000-rand ($73) bail. That amount might seem nominal for Americans, but for the thousands of mostly black South Africans arrested annually for cannabis offenses, a 1,000-rand bail means extensive jail time before seeing a judge.

Clarke and Stobbs were charged with cannabis possession and, because police found more than 115 grams, dealing charges were added. They faced some choices: plead guilty and tar themselves with criminal records, pay an 80,000-rand ($6,000) bribe or sue the government for enacting unjust laws. A guilty plea would haunt them for the rest of their lives, potentially crippling their professional careers and travel opportunities. Facing seven to 10 years in jail, they nearly paid the bribe, which would have made their arrest records disappear. They quickly realized, though, that a bribe was a temporary solution. What would stop the police from coming back for more? There was no way the couple was going to stop using cannabis, so the risk of further extortion would linger forever. As time wore on, they suspected the cops targeted them because the police believed they had the means to afford a bribe and wouldn’t want to risk jail and a criminal record.

After much hand-wringing, stressful debate and joint-smoking, they found a lawyer and filed suit against seven government departments on the grounds that their arrest had violated their constitutional right to privacy. Clever legal-wrangling and more lawyers delayed a proper trial for another seven years. And so began the “Trial of the Plant” in August 2017. Forming a united front, Clarke and Stobbs combined their case with Prince’s and another medical-cannabis user who had originally chosen to represent himself. Their suit alleged that the government’s cannabis laws should be deemed unlawful. On September 18, 2018, the Constitutional Court ruled in their favor, decriminalizing cannabis use and cultivation in private spaces.

The concept of privacy in terms of cannabis is still vague, but Clarke and Stobbs’s attorney, Paul-Michael Angelo Keichel, believes cars, backpacks and pants pockets are all private spaces and can’t be searched without cause or a warrant. Police are still coming around to these concepts, but arrest rates for cannabis possession have dropped precipitously since the ruling.

Crowdsourcing the Cannabis Lawmaking Process

After their story broke over South African media in 2010, the newly christened “Dagga Couple” formed Fields of Green for All (FGA), a nonprofit that collects and disseminates information about global cannabis regulations and adapts them for use in South Africa. FGA and its “Green Network” provide access to legal resources for people facing legal trouble, and they are currently drafting laws they will present to Parliament before new regulations are enacted sometime before September 2021. So far, FGA has succeeded in achieving 36 High Court orders staying the prosecution of people accused of violating the Drugs Act. The group estimates that there are currently 900,000 cannabis farmers in South Africa that support approximately three million people.

The first-draft guide to the proposed legislation—based on the slogan “Nihil de nobis, sine nobis,” Latin for “Nothing about us, without us”—is currently posted online and is designed to support everyone who currently uses, makes a living from or is affected by cannabis laws. Their “Proposal for the Legal Regulation of Cannabis in South Africa” is the result of eight years of painstaking research into cannabis regulatory regimes around the globe, cherry-picking and adapting rules and systems that support traditional healers and black-market dealers.

The 40-page, publicly available, crowd-sourced document is a must-read for any cannabis regulator or activist. It covers everything any government bureaucrat might worry about: worker safety, environmental impacts, testing, taxes, training for workers and cultural issues. Instead of demonizing those who do business in unregulated cannabis markets, FGA is careful to protect them. “South Africa has an existing Cannabis economy,” reads the proposal, “one that is centuries old and, although it is called ‘the black market,’ it functions very efficiently and contributes vast sums to the economy in an informal way.”

FGA Has Established Several “Non-Negotiable” Outcomes

• An age limit of 18 years old unless a minor requires cannabis for a medical condition.
• Cannabis regulations will not be structured around a license system where any individual, organization or government body has the right to grant or deny said license.
• Cannabis must not be regulated in any manner that is harsher than alcohol or tobacco.
• The cessation of any arrest or incarceration for cannabis use, cultivation and trade. Non-criminal sanctions for violations must be clearly set out before any regulations are put into place.
• Nobody will be excluded from the new cannabis economy because of a criminal record for a cannabis-related offense.
• There will be no testing for cannabis at work unless there are sufficient grounds that the employee is not fulfilling his or her duties in terms of an employment contract and there are also sufficient grounds to suspect that the employee’s use of cannabis is the cause of this failure to perform those duties.
• The use of cannabis cannot be used in family disputes or custody battles no more than the use of alcohol can be used under these circumstances.
• The legitimization of the current SA cannabis industry must be a priority before any new regulations are put in place. The black market must become part of the formal market economy with immediate effect.
• All criminal records for the use, possession and trade of cannabis must be expunged from the record immediately. All prisoners being held on cannabis charges must be released immediately with no conditions.

While not on the “non-negotiable” list, FGA demands that “All large scale indoor growing MUST use renewable energy sources—solar or wind power.” Furthermore, “tax revenue from Cannabis must be used for education, harm reduction and tangible social upliftment. The ONLY criteria required will be a registered business and tax number.

This process will be made accessible and simple for ALL South Africans and will have the added benefit of introducing thousands of previously disadvantaged citizens to the formal economy.”

FGA demands that cannabis be controlled by a “Cannabis OmuBUDsman” elected by those who register for production permits and licenses and not appointed by corruptible government officials.

Until Parliament enacts more specific regulations about distribution, the concept of personal use will remain vague. For those caught with large amounts, packaging is key. While it might be possible to convince a police officer that a backpack containing a five-pound brick of pot is someone’s winter stash, the same five pounds divided into street-ready two-gram baggies will probably result in a dealing charge.

Clarke and Stobbs’s court victory has sparked a surge in the sale of equipment for indoor growing. Hydroponic systems, lights and plant nutrients are flying off store shelves, but how private growers attain seeds and clones has not been addressed.

Clarke explained the dilemma to High Times in December 2018. “We still have those dealing charges because we only got decriminalization and trade is not allowed yet,” she said. “They have two years to change the laws. We are going to postpone our case and book a date for six months after the deadline. We intend to write the legislation and present the government with it. If they don’t give us what we want, we will strike back in court.”

This feature was published in the May 2019 issue of High Times magazine. Subscribe right here.