Cannabis clubs in South Africa remain in legal limbo

As is currently the case in Spain, cannabis clubs are a hot topic in South Africa. Not only are they thriving despite their uncertain legal status, but proponents are calling for clarity as the country prepares for 2023.

How quickly the legality of the clubs will change is uncertain, but this issue is clearly on the agenda of reform activists, if not the wider industry.

According to Tseli Khiba, a lawyer and attorney, “It is quite complicated to navigate cannabis law within the current legal framework. The Cannabis for Private Purposes Bill outlines ownership rules for home users and those who choose to grow the plant, but it has also left many questions about the scope of privacy-based rights unanswered. “

The history of the cannabis clubs in South Africa

There is a direct link between the clubs in South Africa and the Spanish clubs. This is because they follow guidelines set out and originally set up by Encod, a non-profit, Europe-based coalition for just and effective drug policies. In the absence of government regulated systems, the Encod definition has been used to create labor and operational guidelines in Spain and Holland (to start with).

According to Encod, a cannabis social club is “an association of adult people who exercise their constitutional right to privately own, grow, consume and share their cannabis.” CSCs must also adhere to several other general operating principles, including community orientation, complete transparency, and that supply follows demand.

In addition, Encod advocates the position that CSCs can be legally incorporated in any country where the cultivation of personal cannabis has been decriminalized. Of course, this does not protect a cannabis club from prosecution by state authorities. What this framework has done, however, is create a basic operational policy for it.

South Africa’s clubs have evolved with the encod definition in mind. Just like in Europe, South Africans have the right to form cannabis clubs under civil rights laws, which include the right to privacy and freedom of association, as well as laws on freedom of belief, expression and expression.

CSCs have evolved in South Africa since the 2018 Constitutional Court ruling decriminalizing personal cannabis use and possession in a private space. In 2020, a draft law called the Proposed Cannabis for Private Purposes Bill was passed by the Cabinet, but it is not taken into account by Parliament. The bill has been widely criticized as unenforceable and is likely to be challenged in court if passed in its current form.

Meanwhile, several high profile busts have given legal status a higher priority, but the truth is that all operating clubs in South Africa have as much federal legal protection as those in Spain. Namely none.

There are currently two types of South African clubs. The first is a “private grow club” that grows cannabis for sale. The second type of club is a physical space where private members can meet.

The current status

The Haze Club, one of the busted clubs, had hoped to get a verdict in June on the legality of its operating model. This has been postponed to September this year. Meanwhile, advocates are pushing for the country’s president to focus on creating a safe passage (at least) until 2023, and by then start creating a coherent cannabis policy.

According to Khiba, “the outcome of The Haze Club case will hopefully clear the legal position of cannabis club models and other private cannabis leases.”

Meanwhile, just like California after 1996 and Spain today, the police are searching clubs and arresting people.

Proponents believe they have a chance, however, and further that the law change now slated for 2023 means that time, if not justice, is on their side.

Just like apartheid and the other struggles for equality in the country, this injustice will pass and the tide will turn.

Until then, a luta continua.