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CURRENT LEGAL STATUS

Updates to South African Legal Environment : 

 

  1. On 03 June 2024, the Cannabis for Private Purposes act was published. This act can be viewed here. 

    1. It is noteworthy to mention that this act defines a private area as : “ any part or portion of communal land as defined in section 1 of the Communal Land Rights Act, 2004 (Act No. 11 of 2004), which, in terms of the rules or custom of a community or the standard rules contemplated in section 19(5) of that Act, is a place which is exclusively used to cultivate or use cannabis in a private place, by an adult person as a member of such a community;”

  2. On 23 August 2023 a SAPS national directive regarding Cannabis was issued. A summary of this directive can be found here (https://www.thecannaclub.co.za/post/saps-issues-directive-to-halt-cannabis-related-arrests-clarifying-south-africa-s-cannabis-laws) - , and the actual directive can be found here (https://drive.google.com/file/d/1GMDUb7EK2u8UWSoBJv2v7arQModKL7J2/view .

  3.  It is noteworthy to mention that this directive also supports communal cultivation. Section 6.1.5 “More than one person may have ownership rights over personal or private Cannabis.” 

  4. This directive also supports traditional healers - Section 6.1.4 “Cannabis dispensed by a traditional, cultural, or religious healer in small quantities is privately and personally possessed”

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PREAMBLE to The CannaClub Stokvel (TCC) CONSTITUTION with regards to the current legal status.

 

We, the founding members and all subsequent members of The CannaClub (“The CannaClub”) Stokvel

 

  1. recognise that:

    1. the right to privacy enshrined in section 14 of the Constitution of the Republic of South Africa, 1996 (“the SA Constitution”) encompasses the right of consenting adults to cultivate, use and possess Cannabis in private for purposes of their personal consumption in private (“the privacy-based Cannabis rights”);

    2. the privacy-based Cannabis rights do not extend to any activities connected with dealing in Cannabis or profiting from the sale or other trade of Cannabis – that such activities remain strictly illegal in terms of Drugs and Drugs Trafficking Act 140 of 1992 (“Drugs Act”);

    3. notwithstanding—

      1. the cogent, overarching guidelines outlined in the Constitutional Court’s Prince Privacy Judgment concerning the lawful exercise of the privacy-based Cannabis rights; and 

      2. the fact that Parliament is presently finalizing a more permanent and sensible legal framework for the lawful means, modalities and parameters for the exercise of the privacy-based Cannabis rights in the Cannabis for Private Purposes Bill, 2020,

    4. there is presently a lacuna regarding specific laws for the safe, responsible and informed exercise of the privacy-based Cannabis rights;

    5. the legal question regarding the extent to which an adult may, in private, cultivate Cannabis on behalf of another adult and under the auspices of the ‘Grow Club Model’ is the subject of a litigious appeal process presently pending in the High Court system in South Africa;

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The judgment of Slingers J of the Western Cape High Court handed down on 29 August 2022 in The Haze Club (Pty) Ltd & Others v Minister of Police and Others (2101/2021) – which held that the Drugs Act prohibits an adult from cultivating Cannabis on behalf of another adult under the auspices of the “Grow Club Model” – is presently the subject of an appeal to a full bench of the High Court, the Supreme Court of Appeal or the Constitutional Court.

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and have established The CannaClub as a non-profit voluntary association, with its own legal personality separate from those of its members, with the public purpose objectives and other corporate and operational governance and related mechanisms and safeguards provided in the body of this Constitution.

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    1. this present legal lacuna unjustly compels many existing and consenting adult Cannabis users – who seek the requisite knowledge, skills and resources of others in accessing their constitutional rights to privately cultivate and personally and privately consume Cannabis – to resort to organized and other criminal, unregulated and unsafe activities in order to exercise their constitutionally protected right to consume Cannabis in private, a result that the learned judges in the Prince Privacy judgment could not have intended;

 

  1. therefore, believe that:

    1. a reasonable (logical, practical and legitimate) and necessary implication of the Prince Privacy Judgment, is that people who satisfy The CannaClub membership criteria must be permitted to transparently exercise their corollary right to freedom of association enshrined in section 18 of the SA Constitution and voluntarily establish and participate in conscious, educational and community-driven, non-profit associations, such as The CannaClub, which functions as a private Cannabis Social Club—

      1. in conformity with the European Guidelines for Cannabis Social Clubs developed by the European Coalition for Just and Effective Drug Policies (ENCOD), which in turn—

        1. require the cultivation, processing and consumption of Cannabis to all take place at the private premises of the Cannabis Social Club; and 

        2. prohibit franchising of and any form of dealing at the Cannabis Social Club;

        3. require that the Cannabis Social Club be non-profit based and have active community empowerment or involvement initiatives; and

        4. as a Stokvel, distinguishable in numerous material and demonstrable respects from the ‘Grow Club Model’,

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Minister of Justice and Constitutional Development and Others v Prince; National Director of Public Prosecutions and Others v Rubin, National Director of Public Prosecutions and Others v Acton and Others [2018] ZACC 30 (“the Prince Privacy Judgment").

 

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