This new South African company will grow your weed and deliver it to you – but is it legal?

A new Cape Town-based business has launched, which aims to be the ‘Uber for weed’ in South Africa.

The group, called The Haze Club operates a cannabis facility which has been set up to ‘offer busy professionals the ability to grow the highest quality cannabis, legally and without time or effort’.

The club says it will professionally manage the growing process on behalf of members, looking after the plant from germination right through to drying and curing, and will deliver the end product to members’ doors.

Membership costs R949 per month, and delivery takes 12 to 14 weeks depending on the strain, it said.

The club does not sell cannabis, nor does it provide any plants or seeds – it simply leases out space in its grow facilities and manages the cultivation of the plants on clients’ behalf.

Is it legal?

A landmark Constitutional Court ruling in September 2018 reinforced South African citizens’ rights to privacy, and declared that the private, personal cultivation and use of cannabis was protected under the Constitution.

The Constitutional Court gave the South African government 24 months (to September 2020) to bring the country’s laws in line with its ruling.

Speaking on the legalities of its business, the Haze Club said that it is advised by Schindler’s Attorneys – the same law firm that assisted in winning the Constitutional Court ruling.

To comply with the law, individual areas in the club’s grow facility are demarcated and leased to its members – thereby making it their private space, it said.

“The club simply assists members in exercising their constitutional right to grow cannabis in their own private space. The club also limits each member to a maximum of two plants. The amount of cannabis is small enough that there can be no doubt that it is for personal consumption.”

“As the law currently stands, (the club) can only grow that which is yours,” it said. “We do not supply seeds or clones.”

In response to queries about the legal aspects of the business, Schindler’s Attorneys told BusinessTech that the Haze Club operates within the confines of South African cannabis laws as they stand today.

“The Judgment is clear that adults may use/possess/cultivate cannabis in private spaces. In fact, the definition of ‘deal in’ in our Drugs Act has already been amended accordingly, by operation of the Judgment,” Partner at Schindler’s Attorneys, Paul-Michael Keichel said.

“Take for example, a group of cannabis-using varsity students, who rent a house together, with a private garden. They, clearly, may now (in terms of the judgment) grow and consume cannabis together in that garden (their rental rendering it their collective private space – ownership not being a requirement).

“Similarly, they may grant their gardener access to their private garden and, unless he has objection, mandate him to water, fertilise and, otherwise, tend to their cannabis plant/s. This would, quite obviously, not render the gardener a dealer, nor his gardening service a drug deal, nor the students’ hiring of him the purchasing of cannabis.

Keichel said that The Haze Club operates within the same confines as both the landlord and gardener in the above scenario, in that those without gardens, or green fingers, or time, can now rent a private space from The Haze Club, provide their own cannabis seed/s, and then mandate gardeners (who specialise in cannabis) to tend to their cannabis.

“No cannabis changes hands for money. You only get out what you put in and no guarantees are made as to yield, quality, etc,” he said.

Legal ‘grey area’

Legal experts have previously laid out exactly where South Africa’s laws currently stand around the legality of cannabis cultivation and use, warning citizens that they should not think it is open season on cannabis use.

While the Constitutional Court ruling made it clear that private use of cannabis is effectively none of the government’s business, it did not go so far as to dictate what constitutes ‘private use’ or a ‘private space’, nor what quantity of the product could reasonably be seen as enough for private consumption.

In lieu of a explicit legal framework, the enforcement of the ruling has largely been left up to the discretion of authorities – the police, prosecutors and judges – who were advised by deputy chief justice Raymond Zondo to “apply their minds” on a case by case basis.

According to Keichel, while this ‘grey area’ presently exists, the firm, and by extension the Haze Club, are of the view that it operates within the confines of the present laws – and that any legal challenges (should one happen) can be defended.

“Whilst there is, presently, no legislation that has been enacted in reaction to the Judgment of the Constitutional Court, the judgment, itself, read alongside existing/old legislation, is law and provides a legal framework – however unsatisfactory/interim it may be,” Keichel said.

“In some respects, the (September 2018) judgment is express in what one can and cannot do. Thus, in these respects, the law is black and white. However, in other respects (e.g. what, exactly, is a private space, and what threshold amount, exactly, is deemed for “personal use”), the rightness or wrongness of our conduct has been left to the discretion of police, prosecutors and, ultimately, judges.

“We opine that (The Haze Club operates) within the present law, but, of course, authorities are not bound by our opinion.

“We trust, however, that the likes of the above analogy and their careful study of the Judgment (and consideration of the intentions of the Constitutional Court Justices) will have them realise that nothing untoward is occurring.

“As we do not know what the ultimate legal framework will look like, we cannot say, at this stage, whether or not this model will be supported – but, as the legislature is supposed to, at a minimum, afford to us the same freedoms as did the judgment, we would submit that, if the model was not supported – whereas we say that it is now – the reactive laws would be open to further Constitutional challenge.”

Read: Why South Africa should decriminalise cannabis completely

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This new South African company will grow your weed and deliver it to you – but is it legal?