The legal ‘loophole’ some South Africans are using to get around the new weed judgement

In September 2018, the Constitutional Court confirmed that the use of cannabis ‘in private’ and cultivating cannabis ‘in a private place’ for personal consumption are no longer criminal offences.

In its ruling, the court found that the criminalisation of these acts in a private place for personal use constitutes an unjustified infringement on the right to privacy.

However, the court did not decriminalise ‘dealing’ or trading in cannabis as the right to privacy has no impact on the purchase or sale of cannabis.

According to Andrew MacPherson, an associate at law firm Cliffe Dekker Hofmeyr, this ruling has resulted in ‘grow clubs’ which exploit the decriminalisation of the personal use and cultivation of cannabis ‘in private’.

Loophole

The grow club model sees the club’s members rent space in a warehouse where professional cannabis farmers will grow a club member’s ‘personal’ stash, said MacPherson.

“The theory is that the rented space at the grow club is the private place of the member,” he said.

“The membership fee includes the rent and also the professional cultivation service required to grow and harvest the plants.

“The theory is also that there is no buying or selling of cannabis in the process and that none of the parties involved doing anything unlawful.”

MacPherson added that there are a number of these grow clubs that have popped up around the country.

The subscription fees are approximately R1,000 per month and members are restricted to two to four plants, depending on the club’s rules, he said.

“The amendment of the legislation by an order of unconstitutionality may have created something of a  ‘loophole’ for grow clubs and for edgy entrepreneurs.

“But parliament will have the final say whether or not to follow global zeitgeist in favour of the legalisation of cannabis for medical and recreational purposes,” MacPherson said.


Read: Here’s what happens if South African employees test positive for weed at work

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The legal ‘loophole’ some South Africans are using to get around the new weed judgement