An interview with Ricky Stone

Words by Amy Paterson

As a follow up to our previous article on The state of whitewashing and weed in the USA, we thought we’d sit down this month with local leading cannabis lawyer Ricky Stone of Cullinan & Associates to discuss the current landscape of cannabis in South Africa.

We talked about where we stand and where we’re headed, what opportunities and threats lie on the horizon and what his hopes and dreams are for the future of the plant and its legalisation in our country.

Q: First, a little bit about you and your relationship with cannabis. How did you come to be one of the pioneers in making a career as a lawyer out of your love for the plant? Was it your perfect surname that determined this destiny? 😉

My interest in cannabis was piqued by curiosity as I entered High School (in the former Ciskei) and my English teacher, who was also a history boff, enlightened us on Napoleon's invasion of Russia which was because the British relied on them for industrial cannabis (hemp), which the Russians grew at scale and the British used extensively in their military and naval fleet. I was also exposed to indigenous cannabis - dagga or nstangu - from a young age accompanying my father on fishing trips to the former Transkei, where I quickly realised the importance of dagga as a form of barter between the indigenous people and white fishermen, who would trade clothing and other wares for cannabis.

Although it has been an excitingly attractive journey as a legal professional pioneering advice in the cannabis and plant medicines sphere; it has been one borne out by a human-rights crusade of epic proportions - people over profit, always - so it has been continuously challenging to seek meaningful protection and recourse for our indigenous people and the established cannabis community who have used cannabis for the longest of times.

I might add that I can hardly make a living as a lawyer providing advice to clients in the cannabis space until such time as South Africa has an enabling regulatory framework - so the struggle is real, deep, and personal, yet absolutely motivating because cannabis has so much to offer all of humanity in so many ways. 

The surname has probably been the focus of jokes more than ever determining this destiny, but of course, it is what it is, all things are aligned and Ricky Stone rolls with the punches, and rolls an impressive joint too! 

Q: Tell us a little bit about the law firm where you practice - Cullinan & Associates? If you are able to share, what kind of things are you currently working on in the cannabis space?

Cullinans' was established in 1997 and is the oldest specialist environmental and green business law firm in South Africa. The firm represents a diverse range of clients throughout Southern Africa and beyond, in many sectors, including agriculture, cannabis, manufacturing, waste management and recycling, and renewable energy.

Our attorneys have taken a special interest in the legalisation of cannabis and the development of hemp (industrial cannabis) and other cannabis-based enterprises in South Africa for many years, primarily because of its potential to make a positive contribution to rural development, the environment, and the South African economy in general. Consequently, in 2021, we decided to establish a practice area dedicated to this emerging field of specialisation and our team now includes South Africa’s most experienced cannabis lawyers, myself and Paul-Michael Keichel (formerly a partner at Schindlers).

We have advised hundreds of clients involved in many different cannabis-related businesses, on the cannabis and pharmaceutical laws applicable to their operations and on what they must do to comply with the law. These include clients involved, or planning start-ups, in rural and medicinal cultivation, private clubs/use, and the manufacture of cannabis pharmaceuticals and wellness products.

Presently, we continue to advise a myriad clients in the cannabis sector, and perhaps most importantly, have advised the Eastern Cape Rural Development Agency on a fit-for-purpose regulatory framework for cannabis in South Africa, and have high hopes of playing a leading role in advising the Office of the Presidency on a National cannabis strategy and regulatory framework with associated legislation.

With all humility, no other law firm in Southern Africa is more suited to this all-important task. The downside is that if we don’t help to enable a fit-for-purpose cannabis framework for South Africa, then our clients will keep reform tied up in the courts for years to come. After all, this is the “People’s Plant”.

Q: What have been some of the highs and lows of your legal career with cannabis?

There have certainly been more highs than lows, although the lows foreshadow the deep struggle which still faces the cannabis community. The lowest of lows is the daily lived experience of the many businesses who seek legal advice solely to seek ludicrous profits borne out from the hype of the Global North, from a powerful plant with an ancient connection to humanity, without so much as acknowledging the history of prohibition and how South Africa got to where we are with cannabis reform - it was not because of corporate interests, or political will, but rather ordinary South Africans taking Government to court to have the racially motivated and scientifically devoid prohibitive cannabis laws declared unconstitutional.

I like to say that #GrassAttractsSnakes because nothing is further from the truth and we already see the corporate capture of South African dagga playing out with relative impunity in plain sight. 

But that painful low aside, the highest of highs has been representing the amaMpondo indigenous cannabis farmers for close to a decade, where I firstly assisted them to end our Government’s 2-decade-long aerial fumigation practice spraying glyphosate, a known carcinogen, from helicopters over indigenous cannabis plantations, and secondly, I have helped bridge the gap between Government and these heritage cannabis farmers. 

Q: What has been South Africa’s relationship with cannabis over the past century? How has the plant featured in our legal and traditional history?

Of course South Africa’s relationship with cannabis is ancient, existing from long before our country was known as ‘South Africa’.  Traditionally, the Khoi, San, and Bantu-speaking nations have used cannabis for a variety of reasons and our literature is replete with references to trade between Indigenous Peoples and colonialists and settlers. These Indigenous People have entrenched customary and indigenous rights to cannabis in South Africa - they hold the indigenous knowledge, which should be protected at all costs.  It is them that should be benefiting from cannabis legislative reform, alas, they are seemingly standing at the end of the queue.

Legally, global cannabis (and drug) prohibition actually started in South Africa just over a century ago, when the then Union Government lobbied the United Nations to ban cannabis use and trade in Southern Africa. Quite clearly that had no impact on the use and trade of cannabis except, of course, that many millions of families have been destroyed because of cannabis prohibition with breadwinners spending their lives in prison cells. As the late great Julian Stobbs, one half of South Africa’s ‘Dagga Couple”, used to say - cannabis prohibition started in South Africa and it will end here.  Jules was right, and the South African cannabis community has already shown that our Constitution and fine courts will keep finding against the unconstitutional, apartheid-era laws which remain unjust in the extreme. A luta continua, vitória é certa.

Q: Have you noticed the general public’s attitudes towards cannabis shifting in recent years? If so, how? And how do you feel about it?

The public’s attitude towards cannabis has certainly shifted in recent years and only for the better. This is largely due to the proliferation of CBD products on the market and the benefits the public has derived from using that single cannabinoid. However, the continued vilification of “dagga” and “THC” by those CBD companies needs to change. So too, do the “hempsters” need to embrace full cannabis plant utility. This is one plant, whether it is used for rope or dope.

Generally I feel good about the shift in public attitude but much more education is still required. We can’t expect doctors to be rushing out to prescribe cannabis when they were never educated on its benefits in the first place.  Additionally, we  still need a paradigm shift as a society to remove the century of stigma associated with dagga being ga-ga. Most critically, politicians and lawmakers need to equally shift their mindsets and focus all efforts on a human rights centred approach to cannabis regulation . 

Q: Do you consider the commercialisation of cannabis to be a positive thing? Why/why not? Are there some things you think we should be aware/weary of? 

Generally, I consider all commercialisation to be a good and positive thing as long as it benefits the holders of the knowledge on whatever is being commodified and commercialised. So yes, commercialisation (and regulation) of cannabis is a positive thing because it should bring financial gain to the millions of South Africans that have cultivated, used, and traded cannabis for the past century and longer.  When those people do not benefit from commercialisation, as is currently the case in South Africa, then commercialisation is an utterly bad thing. 

We need to be aware and weary of the snakes and sharks already establishing themselves in the South African cannabis sector. Most have run on a ticket of hype created by the Global North and will continue lobbying for similar regulatory systems which place profit over people. We probably need to consider, at least in the start, prohibitions on vertical integration and similar protective mechanisms to ensure that cannabis commercialisation benefits as many people as possible. 

We should also be aware that cannabis is a powerful plant, a teacher plant if you will, a connector-of-consciousness. If the plant continues to be abused for the sake of profit at all costs, the plant itself will start teaching these entities a lesson in humility, many already learning it on their (undesirable) balance-sheets. I have said before that “we are not selling t-shirts” and businesses in the cannabis sector must respect the plant they are profiting from and realise that cannabis is not suitable for all, contrary to the deceptive marketing tactics of corporate giants.

Q: Do you think the past and continued whitewashing of weed that has occurred in North America will be mirrored here? Why/why not? What can be done to avoid it?

Absolutely and the mirror is already reflecting brightly in the South.  That is simply what happens when corporate greed enters the “great green gold rush” on a pharmaceutical ticket. Fundamentally, cannabis reform should have started at the bottom and not the top, hence why legacy and heritage cannabis farmers and traders continue to fight for their rightful place at the forefront of the cannabis industry.

To avoid it, the snakes in suits must be called out at every opportunity when they commit grave injustices, such as dumping “legal” cannabis onto the illicit market, a now everyday occurrence across the length and breath of South Africa, or the continued whitewashing and blackfacing market campaigns shoved in the faces of consumers.

Q: To clarify for those who don’t know - what is the difference between decriminalisation and legalisation in terms of cannabis?

Basically, the distinction is the “crim” in decriminalisation. In that scenario, which is where South Africa currently is, criminal punishment is removed (although civil penalties might still apply) whereas legalisation entails a fully lawful, regulated, commercialised sector with no criminal or civil offences.

Q: Where are we currently at in terms of a move towards full legalisation of cannabis in South Africa? For those that don’t know - what is currently legal and what isn’t?

Honestly, we seem to take one step forward but then one hundred steps back. The so-called privacy judgement of the Constitutional Court which liberalised personal adult use and cultivation of cannabis was celebrated the world over. One step forward. However, the Cannabis for Private Purposes Bill which was intended to cure the constitutional defects in our existing legislation, has taken us one hundred steps back, by, for example, continuing to mandate criminal punishment and all sorts of restrictions on number of allowable plants and an adult may cultivate and how much cannabis they may possess.

An encouraging sign was the drafting of the National Cannabis Master Plan which envisages a fully commercial industry that benefits all existing players, although lacking in any meaningful meat as to how that will be achieved, the bones are at least there, because without policy direction, it is near impossible to enact laws to enable a beneficial cannabis industry. The most encouraging sign is potentially the recent appointment of Mr Garth Strachan as the National Cannabis Coordinator who is tasked with the massive job of ensuring that the necessary laws are put in place as quickly as possible to usher in full industrialisation of cannabis across all sectors of the value chain.

What is currently legal is the use and cultivation of cannabis (in any amount) by an adult in a private place. So too are certain low-dose CBD products regulated under pharmaceutical laws.  The market is however flooded with unlawful CBD products, such as foodstuffs and beverages and all sorts of smokables, and the regulators seemingly turn a blind eye, and consumers and well-intentioned start-up companies in a state of confusion.

Also legal, according to the Government and SAHPRA, but not on a proper interpretation of the law, is the medical cultivation of cannabis with a licence and the export of that cannabis.  Recently, the commercial cultivation of “hemp” has also been declared legal although the writing is firmly on the wall that the industry will be a non-starter because of the unscientific approach taken towards regulating it.  Everything else is unlawful regardless of what some might say. It sure is the wild, wild west, or south, out there. Be careful who you listen to.

Q: What are some of the obstacles standing in the way of full legalisation, and what is the process required to overcome them? What is the timeline we are realistically looking at?

The chief obstacle is a Government being led by its nose by those with vested corporate interests, preferring a copy-paste model out of Canada and the Americas.  The absence of any real knowledge of cannabis diversity and its myriad uses by lawmakers is a further obstacle. So too is the lack of political direction - white papers, policy, and the like. But there is hope as Mr Strachan has acknowledged these gaps and the dire need to bring in experts from the private sector to hold the Government's hand and get this right once and for all.

Realistically, I don’t see a fully legal industrial and commercial cannabis industry until mid-2024, at the very earliest. Of course, if good draft laws are placed before the public and portfolio committees, then things move along quickly. It is those draconian and problematic laws that take years to pass.

Q: What are some of the challenges you anticipate for South Africa, should cannabis be fully legalised?

Keeping the corporate capture at bay and stopping it in its tracks. My fear is that the most marginalised heritage and legacy cannabis farmers and traders will be further marginalised. There is a real risk that the “blackfacing” marketing campaigns will only get worse.

A bigger challenge is the push back by these legacy communities and protracted legal challenges that will follow if South Africa does not enact fit-for-purpose cannabis laws. It cannot be legalisation by any means, the ends must be justified by acknowledging the pains of the past and enabling a commercial industry from the bottom up.

Q: What are some of the opportunities you anticipate for South Africa, should cannabis be fully legalised?

There are endless possibilities and opportunities. Cannabis is one of the only crops where the entire plant and all its parts can be used across a diverse range of industries. A cannabis utility model can aid a transition away from non-renewable raw materials and restore vitality in humans and animals alike. There has always been a global demand for African cannabis and I only see that exploding in years to come.

Q: What are some of the things that us cannabis lovers of the general public can do to support the legalisation effort?

Actively participate in rigorous debate, call out the snakes and sharks at each turn, and keep donating to organisations on the frontline of cannabis legal reform, such as Fields of Green for All and the Umzimvubu Farmers Support Network. Keep supporting small businesses in the cannabis sector - it is these entrepreneurs that will innovate and ideate once an all-encompassing legal framework is in place.

Q: If you’re happy to share, what are some of your personal hopes and dreams for the future of cannabis in our country?

Personally, I hope that we achieve my desire for a cannabis industry that empowers the most marginalised and sees the legacy and heritage of cannabis farmers as the backbone of the industry. My dream is that all cannabis be treated equally and that the full utility of this profound plant is truly realised. I also dream that cannabis will play a meaningful role in re-connecting humanity with nature and shaping a harmonious co-existence of humans within nature for the ultimate benefit of the whole Earth system.