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WHAT IS A PRIVATE CANNABIS CLUB:
A cannabis private cannabis club is:
● An association of like minded adults,
● Who are exercising their constitutional rights to association1 and privacy2,
● In order to possess, cultivate, consume and share their cannabis in a private space;
● Which private space is created by the club, physically and through its constitution and rules;
1Section 14 of Chapter 2: Bill of Rights;
2Section 18 of Chapter 2: Bill of Rights;
IS IT ILLEGAL?
This question is difficult to answer as Cannabis possession, consumption, cultivation and distribution had to date only been decriminalized and the South African Government is in the process to assent laws which will govern same.
Therefore currently there exists no precedent in our law in terms of cannabis social clubs and as such we are on the forefront in terms of the industry and its self-regulatory compliance, to standards set by those willing who operate within the industry.
We are of the view that we are operating within the confines and prescripts of the legislation, however we cannot give any guarantees that our interpretation and applications of the laws are correct, nor that no other interpretation exists.
It is our view that currently cannabis cultivation and consumption has been decriminalized by the constitutional judgment:
Minister of Justice and Constitutional Development and Others v Prince (Clarke and Others Intervening); National Director of Public Prosecutions and Others v Rubin; National Director of Public
Prosecutions and Others v Acton (CCT108/17) [2018] ZACC 30; 2018 (10) BCLR 1220 (CC); 2018 (6) SA 393 (CC); 2019 (1) SACR 14 (CC) (18 September 2018)
The most relevant portion of the judgment reads as follows:
6. The cross-appeal is upheld in part to the extent that the reference in the order of the High Court to “in a private dwelling” or “in private dwellings” is replaced with “in private” or in the case of cultivation, “in a private place”. [own emphasis]
7. The order of the Western Cape Division of the High Court is confirmed only to the extent reflected in this order and is not confirmed in so far as it is not reflected in this order.
8. To the extent that the order of the Western Cape Division of the High Court purported to declare as constitutionally invalid provisions of sections referred to in that order that prohibit the purchase of cannabis, that part of the order is not confirmed.
9. To the extent that the order of the Western Cape Division of the High Court excluded from the ambit of its order of the declaration of invalidity provisions of the sections referred to in that order that prohibit the use or possession of cannabis in private in a place other than a private dwelling by an adult for his or her own personal consumption in private, that part of the order is not confirmed.
10. It is declared that, with effect from the date of the handing down of this judgment, the provisions of sections 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 read with Part III of Schedule 2 of that Act and the provisions of section 22A(9)(a)(i) of the Medicines and Related Substances Control Act 101 of 1965 read with Schedule 7 of GN R509 of 2003 published in terms of section 22A(2) of that Act are inconsistent with right to privacy entrenched in section 14 of the Constitution and, therefore, invalid to the extent that: they make the use or possession of cannabis in private by an adult person for his or her own consumption in private a criminal offence. [own emphasis]
11. It is declared that, with effect from the date of the handing down of this judgment, the provisions of section 5(b) of the Drugs and Drug Trafficking Act 140 of 1992 read with Part III of Schedule 2 of that Act and with the definition of the phrase “deal in” in section 1 of the Drugs and Drug Trafficking Act 140 of 1992 are inconsistent with the right to privacy entrenched in section 14 of the Constitution and, are, therefore, constitutionally invalid to the extent that: they prohibit the cultivation of cannabis by an adult in a private place for his or her personal consumption in private. [own emphasis]
12. The operation of the orders in 10 and 11 above is hereby suspended for a period of 24 months from the date of the handing down of this judgment to enable Parliament to rectify the constitutional defects.
13. During the period of the suspension of the operation of the order of invalidity:
(a) section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 shall be read as if it has sub-paragraph (vii) which reads as follows:
“(vii) , in the case of an adult, the substance is cannabis and he or she uses it or is in possession thereof in private for his or her personal consumption in private.”
(b) the definition of the phrase “deal in” in section 1 of the Drugs and Drug Trafficking Act 140 of 1992 shall be read as if the words “other than the cultivation of cannabis by an adult in a private place for his or her personal consumption in private” appear after the word “cultivation” but before the comma.
(c) the following words and commas are to be read into the provisions of section 22A(9)(a)(i) of the Medicines and Related Substances Control Act 101 of 1965 after the word “unless”:
“, in the case of cannabis, he or she, being an adult, uses it or is in possession thereof in private for his or her personal consumption in private or, in any other case,”
14. The above reading-in will fall away upon the coming into operation of the correction by Parliament of the constitutional defects in the statutory provisions identified in this judgment.
15. Should Parliament fail to cure the constitutional defects within 24 months from the date of the handing down of this judgment or within an extended period of suspension, the reading-in in this order will become final.
In light of the aforementioned, it is our interpretation of the reading in to the legislation, that an adult South African citizen is allowed to:
HOW DOES THE CLUB WORK?
We educate our members to conceal their cannabis whilst in a public space
We limit the quantity of cannabis that a member is allowed to obtain from the sharing station to a maximum of 100g to ensure that cannabis only for personal
4 Minister of Justice and Constitutional Development and Others v Prince….
3 Definition of “private space” in Section 1 of the Cannabis for Private Purposes Bill;
Therefore, we are of the view that in terms of prayer 10 of the order of the Constitutional Court Privacy Judgment 5, the private club conforms to the reading into the relevant acts and thus the use or possession of cannabis by the members, are in private and it is possessed by adult persons for their own consumption in private.
5 Minister of Justice and Constitutional Development and Others v Prince….
WHAT ARE THE LIMITS ON SHARING AND WHY DO THEY MATTER?
The club has adopted the following limits in terms of sharing between members:
The reason behind the limits on sharing is due to the fact that the club advocates for the responsible use of cannabis by adults in private;
The club wants to ensure that all of their members use cannabis appropriately and for the correct reasons.
By setting the limits in terms of sharing, the clubs attempt to avoid an oversupply of cannabis to its members. In so doing it: