The South African government has made a decision that is unprecedented in the history of cannabis clubs in the country: it will allow these clubs to operate, but it will reserve the right to inspect these clubs on a regular basis, and to shut them down if they fail to meet the requirements of the law.
After years of turmoil, South Africa’s cannabis clubs continue to exist in legal limbo. The story of the clubs, with the crucial details behind their formation and demise, is one that is usually lost in the hype of the cannabis wars.
As in Spain, cannabis clubs are now a hot topic in South Africa. Not only are they thriving despite their uncertain legal status, advocates are calling for clarity as the country begins to prepare for 2023.
It’s unclear how quickly the legality of clubs will change, but the issue is clearly on the agenda of reform activists, if not the burgeoning industry out there.
According to Tseli Hiba, an attorney and rights advocate, it is complicated to manage the rights of cannabis plants under current law. The Personal Cannabis Bill includes rules for possession by home users and for those who want to grow the plant, but it also leaves many questions unanswered about the scope of privacy rights.
There is a direct link between South African clubs and Spanish clubs. This is because they follow guidelines originally developed and established by Encod, a non-profit European coalition for fair and effective drug policies. In the absence of government-regulated systems, the Encod definition was used to produce (initially) working and operating manuals in Spain and the Netherlands.
According to Encod, the Cannabis Social Club is an association of adults exercising their constitutional right to privately possess, cultivate, consume and trade cannabis. CCPs must also observe certain other general operating principles, including community focus, full transparency and the principle that supply follows demand.
Furthermore, Encod’s position is that CSCs can be legally established in any country where the cultivation of cannabis for personal use has been decriminalized. Of course, this does not protect cannabis clubs from prosecution by the government. What this system did do, however, was create a basic manual.
South African clubs have evolved according to the Encod definition. As in Europe, South Africans have the right to establish cannabis clubs under civil rights laws, including laws on the right to privacy and freedom of association, as well as laws based on freedom of belief, speech and expression.
CHCs have grown in South Africa following a 2018 Constitutional Court ruling that decriminalized personal use and possession of cannabis on private property. In 2020, the Cabinet approved a bill called the Private Use Cannabis Bill, but it is still pending in Parliament. The law has been widely criticized as unenforceable and is likely to be challenged in court if passed in its current form.
Meanwhile, some high-profile arrests have made legal status a higher priority, but the truth is that all clubs operating in South Africa enjoy the same federal legal protection as clubs in Spain. In fact, none.
There are currently two types of South African clubs. The first is a private cultivation club that grows cannabis for purchase. The second type of club is a physical space where private members can meet.
Club Haze, one of the clubs involved in the arrest, had hoped to get a ruling in June on the legality of its business model. This deadline has been extended to September this year. In the meantime, advocates are trying to get the president to focus on creating safe transit (at least) through 2023, and begin developing a coherent cannabis policy before then.
According to Hiba, it is hoped that the outcome of The Haze Club case will clarify the legal position of cannabis club models and other private cannabis rental schemes.
Meanwhile, as in California after 1996 and in Spain today, police are raiding clubs and arresting people.
Still, the lawyers think they have a chance, and that the legislative changes scheduled for 2023 mean that time, if not the judicial process, is on their side.
Like apartheid and other struggles for equality in the country, this injustice will pass and things will change.