The Cannabis for Private Purposes Bill, tabled in parliament on 1 September, provides clarity around the growing and private use of cannabis in South Africa.
In an analysis of the bill, Brett Pollack of specialised legal service Legalese Solutions, said that the legislation prescribes the quantities and modalities in which an adult can:
- Possess seeds and seedlings;
- Cultivate plants in a private place;
- Possess bud in a private place;
- Privately possess (including transporting) bud or plants in a public place;
- Consume in a private place;
- Without any compensation give seeds and seedlings, plants and bud to another adult.
Pollack said that in its current form the bill is ‘far from perfect’ as it permits and prohibits arguably arbitrary quantities, and creates some curious offences with harsh sentences that would make it difficult for many to exercise their constitutional, privacy-based cannabis rights.
He said that this could further perpetuate and even deepen socio-criminal stigmas against already marginalised, cannabis-using communities.
Cannabis clubs by private members
Despite these concerns, Pollack said that ‘cannabis clubs’ for private use are proliferating across the country as the rules around cannabis remain in a form of limbo, following the 2018 Constitutional Court ‘Prince’ judgement.
“Given that the prohibition against so-called recreational dealing in cannabis is here to stay, and that many cannabis users are not in a position to privately cultivate their own cannabis, the bill must by-hook-or-by-crook be read to legitimise cannabis clubs across the vast rural-urban and high-low income divides in South Africa,” he said.
“If we have the constitutionally entrenched human right to privately cultivate, possess and consume our own cannabis, then we surely may exercise the right to freely associate with others – an equally entrenched constitutional corollary – in doing so.”
However, he noted that dealing in cannabis is simply illegal. This means that cannabis clubs must fiercely apply this logic to all levels of their corporate decision-making and operations and meticulously reflect it in the corresponding legal documents and accounting systems.
To these ends, critical questions need to be carefully addressed in deciding whether an intended cannabis club model is legally viable, including, to name some of the salient ones:
- Through which corporate vehicles can one establish a legally and commercially viable and private cannabis club?
- Is it okay to contract out the cultivation element to independent or satellite growers or must all of the cultivation take place under the club’s roof?
- Do any quality control standards apply?
- Must the members own their own crop and, if so, how should this vesting or transfer of ownership take place?
- Is it legitimate for the club to take 100% of the responsibility for the cultivation, harvest, and processing of the cannabis and is delivery to members permitted?
- What modes, quantities and varieties of cultivating, possessing and consuming cannabis should the club endorse?
- What suite of constitutional documents, contractual agreements and policies are required to legitimately and transparently reflect these choices through sound objectives, principles, corporate governance and accounting measures? And what declarations and warranties should the club and its members be making in these documents?
“This list is not by any means exhaustive of all of the considerations that require rigorous legal analysis and modelling. And the flexibilities of Prince will come to an end once the bill’s legislative process culminates with an act of parliament,” said Pollack.
“So it would be prudent to judiciously and prospectively consider your intended cannabis club model and whether it holds the promise of a commercially viable cannabusiness prior to pouring blood, sweat, tears and millions into establishing it.”