Cannabis Clubs in South Africa Remain in Legal Limbo

Like Spain right now, cannabis clubs in South Africa are a hot topic. Not only are they flourishing, despite their uncertain legal status, but advocates are calling for clarity as the country begins to get ready for 2023.

How fast the legality of the clubs will change is uncertain, but this issue is clearly on the agenda of reform activists if not the nascent industry beyond that.

According to Tseli Khiba, a lawyer and advocate, “Navigating cannabis rights within the current legal framework is quite complicated. The Cannabis for Private Purposes Bill outlines possession rules for home users and those who choose to grow the plant, but it has also left a lot of questions regarding the scope of privacy-based rights unanswered.”

The History of Cannabis Clubs in South Africa

There is a direct connection between the clubs in South Africa and the Spanish Clubs. This is because they follow guidelines set out and initially established by Encod, a non-profit, European-based coalition for just and effective drug policies. In the absence of state-regulated systems, the Encod definition has been used to create working and operational guidelines in Spain and Holland (for starters).

According to Encod, a Cannabis Social Club is “an association of adult people who are exercising their constitutional right to possess, cultivate, consume and share their cannabis in private.” CSCs must also follow several other general operating principles, including having a community orientation, full transparency and that supply follows demand.

Further it is Encod’s position that CSCs can be set up legally in any country where the cultivation of personal cannabis use has been decriminalized. Obviously, this does not protect any cannabis club from prosecution by state authorities. However, what this framework has done, is create a basic operating guideline for the same.

South Africa’s clubs have developed with the Encod definition in mind. Specifically, just as in Europe, South Africans have the right to create cannabis clubs under civil rights laws that include the rights to privacy and freedom of association laws as well as those based on freedom of belief, expression and opinion.

CSCs have developed in South Africa since 2018 Constitutional Court ruling, which decriminalized personal cannabis use and possession within a private space. In 2020, a bill called the Proposed Cannabis for Private Purposes Bill was passed by the cabinet, but it remains unconsidered by Parliament. The draft of the bill has been widely criticized for being unenforceable, and is also likely to be challenged in court if it is passed in its current incarnation.

In the meantime, several high-profile busts have moved the legal status into a higher priority, but the truth is that all the operating clubs in South Africa have just as much federal legal protection as the ones in Spain do. Namely, none.

There are currently two kinds of South African Clubs. The first is a “private grow club” that grows cannabis for purchase. The second kind 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 ruling on the legality of their operating model in June. This has been pushed back to September of this year. In the meantime, advocates are pushing forward on trying to get the president of the country to focus on creating a safe passage (at least) until 2023 and further to begin to create a coherent cannabis policy before then.

According to Khiba, “Hopefully, the outcome of The Haze Club case will clarify the legal position of cannabis club models and other cannabis private-leasing arrangements.”

In the meantime, just like California post 1996 and the Spain of today, the police are raiding clubs and arresting people.

That said, advocates believe that they have an opening, and further that the change in the law now slotted for 2023 means that time if not the tide of justice is on their side.

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

Until then, a luta continua.