As research has amply proved, there’s an all but un-severable link between institutionalised racism and the historical prohibition of cannabis in South Africa. Jules Stobbs and Myrtle Clarke, the famous ‘Dagga Couple’ who’ll be making the case before the High Court in March 2016 that the continued ban on the plant is unconstitutional, will be leaning heavily on this argument. KEVIN BLOOM sits down with the Dagga Couple, and with their lawyer, to see what else they’ll be throwing at the seven state entities who’ll be acting as joint defendants.

1. The Fog

To set the scene, a representative extract from the Natal Indian Immigrants Commission Report of 1887:

“As we are strongly convinced that the smoking of hemp is as baneful to the K***** as to the Indian, we consider it is our duty to suggest that chemists, holding special licences subject to stamp duty, should be the only persons allowed by law to sell any portion of the hemp plant, whether wild or cultivated, to any person whomsoever, whether of white, K*****, or Indian descent.”

In noting that the censored term (written out in full in the original) has since become the most incendiary item on South Africa’s eternally combustible list of racial pejoratives, it may also be useful, before we kick off, to provide a handful of synonyms and/or synonymous phrases for the archaic adjective ‘baneful’: pernicious, noxious, dire, irreparably harmful, a thing of evil or calamitous portent.

So far, so clear, yes? On March 10 next year, when case 58668/2011 comes before the North Gauteng High Court, the above will almost certainly be among the arguments that plaintiffs Julian Christopher Stobbs and Kathleen (Myrtle) Clarke put to the judge. They will be making the argument through expert witness Craig Paterson, whose 2009 thesis, Prohibition & Resistance: A Socio-Political Exploration of the Changing Dynamics of the Southern African Cannabis Trade, c. 1850 – the present, is awash in such examples. A work of heavily footnoted research, Paterson’s thesis arrives at the all but inarguable conclusion that the criminalisation of dagga in South Africa was hitched from the start to the white man’s need to control, subdue and demonise his non-white brother.

But here is where the fog moves in. There are seven defendants in case 58668/2011, and they appear on the summons sheet as follows: the national director of public prosecutions; the minister of justice and constitutional development; the minister of health; the minister of social development; the minister of international relations and cooperation; the minister of trade and industry; the minister of police.

And here is where the fog properly thickens. “I’m sure they have a strategy,” Paul-Michael Keichel, senior legal adviser to the plaintiffs, tells me. “Although it’s very light on detail. The seven state departments that have been sued speak as one voice, and they don’t have much to say except ‘prove it’. All we know is that they oppose it. They believe (cannabis) is harmful and should be banned.”

We are gathered around a boardroom table at the offices of Schindlers Attorneys in Johannesburg, where the mooted topic of discussion is exactly what Keichel and his clients are required to ‘prove’. I have jumped ahead in the plot, to the part (strictly hypothetical) where they are pronounced successful. Can the country jack up a giant spliff the same day? “The Constitutional Court prefers it when they have the wisdom of the High Court,” says Keichel. “It means the issues have been properly chewed on. But the Constitutional Court has to confirm the High Court’s decision. After that, it mandates the legislature to change the law. The legislature has got one year.”

Across the table from their lawyer sit Stobbs, 55, in a fading short-sleeve, collared shirt patterned in a cannabis leaf motif, and his partner Clarke, 48, less sartorially combative in horn-rimmed specs and a plain dark blouse. The ‘Dagga Couple’, as the pair have come to be known, met nine years ago at the neo-hippie Free State enclave Rustlers Valley – or, to be exact, at the restaurant Clarke once owned and managed at Rustlers called The Sorcery. The High Court summons lists both of them as freelance art directors in the film industry, with Clarke’s bio including the descriptors ‘food stylist’ and ‘chef’ and Stobbs’s the giveaway term ‘greensman’. They assumed their roles as lead characters in South Africa’s marijuana drama, as a recent TEDx appearance in Cape Town entertainingly explains, after the police had raided their premises in August 2010 on a tip-off. “We refused to bribe our way out, and we didn’t want a criminal record,” says Clarke.

Watch TEDx video: Ordinary Criminals | The Dagga Couple | TEDxCapeTown

The joint statement of the Dagga Couple in the above-mentioned summons is about as joyfully unrepentant as it’s possible for a pair of busted illegal substance peddlers to get. Herewith the relevant Locus Standi:

10.1. For the past 20–30 years the plaintiffs have been using cannabis (dagga) for recreational, medicinal, spiritual, therapeutic, creative and religious purposes.

10.2. The plaintiffs have also been making cannabis available to visitors to the Jazzfarm (their semi-rural Lanseria, Gauteng, address – ed) for purposes of participating in medicinal ceremonies, cleansing ceremonies, therapy, spiritual rituals, worship and meditation, during which the use of dagga may play a part, and for the purposes of which it was made available to participants.

As it so happened, the North Gauteng High Court, under Justice Eberhard Bertelsmann, issued a stay of prosecution in July 2011, appertaining to the plaintiffs’ challenge against the constitutionality of the general criminal prohibition of the cannabis plant. “The court accepted prima facie that there was a case to be argued,” says Keichel.

2. The Law

“So if this is a constitutional challenge,” I say, returning to the script, “it’s about your so-called rights. Enlighten me.”

“Sovereignty!” yells Stobbs. “Bodily integrity!”

“For real?”

“Big time. It’s my body, you bug off.”

“Okay. And?”

“Cognitive liberty, freedom of conscience and belief. It’s huge. The right to feel what I want to feel. What they’re doing, by banning the plant, is clipping my consciousness.”

Keichel lists the next two. “Equality. The long and the short of this is that tobacco and alcohol users aren’t put in prison, they are often celebrated. And then fourth is the right to life and dignity. This is a victimless crime.”

By way of illustration on the last point, Clarke mentions the case of a 19-year-old girl who has just been arrested in Pretoria in possession of a Checkers packet full of cannabis leaves. Stobbs scrolls through his phone and shows me a pair of photographs on the Facebook page of the Pretoria Rekord community newspaper.

The first photograph is a close-up of the seized contraband; the second shows three beefy white policemen with crew cuts, one wearing his Kevlar vest, all around smiles from ear to ear. The haul is a rolling machine, a packet of small Rizla blades, a tin cigarette holder, and a collection of leaves from the branches of what can only be a young, solitary plant – the dried bud of the cannabis plant, which is what non-policemen (and perhaps even some policemen) traditionally smoke, is not immediately apparent in either of the frames, although it may very well be in that small plastic bank-packet in the standing policeman’s left hand.

What is apparent, for all in South African Police Service management to see, are the hashtags: #crime #dagga #drugs. There is also the following caption: “Small dagga plantation discovered … at a commune in Brooklyn. 19-year-old arrested …”

Says Stobbs: “There are a thousand arrests a day in South Africa, we reckon.”

“What?”

“Conservatively. There are 305 magistrates courts in this country, and we reckon each one has three a day. The Randburg court has at least 10 a day, you should go sit there one day and count.”

I very well may, I’m thinking – it would be an interesting exercise to conduct in light of the following statistics: in 2013, according to the International Narcotics Control Board, 60,400 kilograms of cannabis were produced legally around the world; that same year, according to the World Drug Report, between 128-million and 232-million people on Planet Earth were thought to have used cannabis recreationally (or, on the upper side, just under 5% of the global population between the ages of 15 and 65).

“Somewhere along the line,” says Keichel, “someone decided that this was a place in your consciousness that you could not go.” He wants me to be clear, however, that this is strictly his legal opinion – it’s not his personal opinion at all.

3. The Meds

Rick Simpson? I had never heard the man’s name, but then, if nothing else, an afternoon in the company of the Dagga Couple is bound to teach you exactly what you don’t know about the global cannabis culture. I was enquiring about the conceptual difference between medical marijuana and its uncouth non-medical ancestor when Clarke suggested I look into the story of this aging Canadian-in-exile. That night I did, and the first thing I found was that the name appears to be permanently attached to the suffix ‘oil’. The second thing I found, on the masthead banner of the simpson-oil.com website, was a photograph of a couple well into their retirement years, the husband kissing the wife’s forehead, the message being that if what you wanted was a long and happy and disease-free life, you had come to the right place.

Sadly, within five minutes, simpson-oil.com would expose itself as a scam. Not because cannabis oil can’t help you to live a long and happy and disease-free life (seemingly it can, and the growing body of scientific evidence documenting how it can will form a major thread in this ongoing series), but because the website phoenixtears.ca, launched to promote Simpson’s eponymous book, featured a video of the man himself saying there was only one official brand attached to his name. Also, floating across the bottom of the phoenixtears.ca mobile landing page were these words: “Make your own oil and be aware of scammers. We do not supply oil, we are providing information. The only way to know that you have the real thing is to produce it yourself.”

Stobbs, ironically, had said something in a similar vein to me. “It’s not rocket science,” he’d said. “Any honest oil maker will attest to the fact that it’s a simple chemistry.” Ironic because Stobbs had forcefully rejected all conceptual distinctions between medical marijuana and your plain old garden-variety dagga, and because Clarke had flagged Simpson as the man most responsible for popularising (however unwittingly) the more polite term. Either way – and here’s the important bit – we’d been discussing the matter in the context of this particular e-mail from the parents of a five-year-old South African boy with epilepsy:

Hi there

Hope you are well, the cannabis oil has been working very well for us, our little boy is totally off this Epilim medication and he hasn’t had a single seizure!!

In the past if he just missed one dose he would fit and it’s been a month now with nothing!!

We truly are amazed!!

“Amongst others,” Keichel had commented, “the people who made that batch for the parents face charges for use, possession, dealing, dispensing and child abuse.” Reading the story of how Simpson went from cannabis oil as a treatment for his own skin cancer in 2003, to treatment later that same year for his mother’s psoriasis, to treatment for a variety of diseases for strangers from a burgeoning cross-section of the Canadian population – and ultimately to his insoluble problems with the Royal Canadian Mounted Police – it’s likely that Simpson and the Dagga Couple would have a lot to talk about. In Canada, police and prosecution services are able to pursue criminal charges for possession, while the plant is lawful to possess or consume for medicinal purposes under certain conditions. Further, as we saw in the first article of this series, the export of low-THC hemp products is a fully legalised, high-growth industry in Canada. Simpson’s problem, as the judge had told him during a confidential private discussion just before sentencing in his 2007 trial, was that “the government wants the researchers to bring (these medical products) out.”

In South Africa, a country acknowledged by experts worldwide as having an ideal growing climate and some of the finest cannabis strains anywhere, zero tolerance is the law: that’s zero tolerance by our boys in blue for recreational, medicinal and industrial use. As for the medical angle, and specifically as regards the status of the Medical Innovation Bill that MP Mario Oriani-Ambrosini proposed before he died last year, the Dagga Couple are dead against the presentation of an exclusive argument. “If medical marijuana is seen to be the Holy Grail that dagga isn’t,” Stobbs said to me, “the authorities can hold the strings. It’s obfuscation, the prohibitioners want you to think that they’re different. But I’ve got news for you, matey, inside the body of that five-year-old epileptic being treated with medical marijuana you’ll find dagga.”

Which is not to say that the medical properties of cannabis won’t feature in the case – they will, heavily. As mentioned in part one, Dr Donald Abrams of the University of California San Francisco Osher Center for Integrative Medicine is coming over as an expert witness: “You may not have heard of him,” said Stobbs, “but in our world he’s the bloody Messiah.” Also mentioned in part one was local hemp authority Tony Budden, who’ll be acting as expert witness on the industrial angle. And on the recreational side will be Paterson, who’ll be drawing his practically un-severable link between institutionalised racism and the historical prohibition of cannabis in South Africa.

Paying for all of this, Stobbs and Clarke hope, will be a global crowdfunding campaign on Indiegogo, destined to go live shortly. The target is $80,000, to pay for the flights and accommodation of the expert witnesses (there are, it appears, a lot more than the above three on the wish-list). Daily Maverick has seen the video plea, and can confirm it’s a potential wallet opener. “Politicians have been making decisions about this plant for a hundred years,” we hear in the clip. “Now it’s time for the doctors, the toxicologists, the psychologists …”

The campaign will work on the commission system, meaning that if the Dagga Couple don’t raise the full target they won’t have to give it all back: they can keep a predetermined percentage of what they do raise. But they’ll be going all out for the $80k, placing their faith in cannabis as a “public good” and the pulling power of this not entirely unreasonable assessment: “There has never been such an opportunity to change the system.” DM

Still to come in The Cannabis Chronicles, either as standalone articles or as part of broader feature pieces:

The Dagga Party’s early December 2015 case before the Cape High Court, which will not be argued by accredited members of the legal fraternity, but which has attached itself to the stay of prosecution issued, as explained above, to the Dagga Couple.

The economics of the cannabis plant in South Africa, as presented by sources who have studied the potential fiscal benefits of legalisation, as well as the ongoing costs of prohibition.

The growing body of scientific data that speaks to the medicinal properties of the plant.

The body of evidence that speaks to the harmful effects of the plant.

The place of the plant in traditional African belief systems.

The plethora of local online communities and social media movements that have been formed around the legalisation cause.

* Readers with real leads and intelligent comments are invited to e-mail [email protected]

Main photo: Cannabis plants in La Florida, Santiago de Chile, Chile, 07 April 2015. The first cannabis harvest in Latin America for medicinal purposes took place in Chile. Chile’s legistlation is progressing towards the decriminalization of consumption and cultivation of cannabis for personal use and medicinal purposes, permitting six plants per household. EPA/FELIPE TRUEBA.