This report first published by News24 on 7 October 2024.

Drive down Main Road, Sea Point, which runs parallel to Cape Town's famous promenade, and every block has its own cannabis outlet.

There is Infusion Social Club, Canna Busters, Medcur Medical Cannabis, the 420 Doctor, and Whoomph! Private Community Club. Canna Seed is opening soon.

Private cannabis clubs and medical marijuana dispensaries have exploded since a landmark 2018 Constitutional Court ruling – the Prince judgment – decriminalised the cultivation and use of cannabis by adults in private.

But despite the ubiquity of cannabis outlets across all of South Africa’s major metros, and increasingly in smaller towns, their legal standing remains on shaky ground.

While the Prince judgment meant police couldn't bust in and arrest you for growing or smoking dagga in private, the use and trade of dagga in public settings are still regulated by 1992 Drugs and Drug Trafficking Act. And under this act, the sale of cannabis is illegal.

So, are the social cannabis clubs lining Main Road breaking the law? And if they are, is there a type of wink-wink, nudge-nudge understanding that the law will not be enforced?

Cape Town City Silent on Enforcement

It’s a surprisingly difficult question to answer. The City of Cape Town, for one, declined to comment. Its reticence is understandable. Declaring the clubs legal would set a tricky precedent. Declaring them illegal would raise questions about why they are operating.

While authorities dither, the market has laid down its own rules for how to trade cannabis.

Attorney Paul-Michael Keichel, who has been involved with cannabis law in South Africa for over a decade, said there are two main models that cannabis outlets have adopted to legally justify their operations.

Private cannabis clubs, or "social clubs", like those that line Sea Point's Main Road, attempt to use the Prince judgment as legal footing for their operations.

Because the judgment allowed adults to cultivate and use cannabis in private, the clubs say they are renting out private land to clients – who pay a membership fee – to be part of their club. The club then offers "horticultural services" to the renters and grows the cannabis on their behalf.

But this "grow club" model has already been struck down by South Africa's courts.

In October 2020, police raided the Haze Club in Cape Town, seizing 344 cannabis plants and 2.5kg of dried cannabis, valued at approximately R1 million. The club attempted to defend the legality of their model, but in August 2022, they lost their case in the Western Cape High Court.

To allow a grow club model, as proposed by the applicants, to operate in the absence of statutory and/or legal regulations and guidelines could have the practical effect of legalising dealing in cannabis," found Judge Hayley Slingers.

While Slingers said that Parliament may want to legalise dagga in the future – it was not up to the courts to pre-empt its decision. Policy issues, she said, fall within the realm of the legislature "not the judiciary".

The Haze Club has won leave to appeal the Slingers ruling, and the case is set to be heard before the Supreme Court of Appeal next month.

Keichel, who is acting for the Haze Club in the upcoming appeal, said that some clubs are taking the "grow club" model much further.

"What some people are doing is that they have taken the concept of a club further and taken it into what I call abusive territory where they say: 'Well, we are only selling cannabis to our members'," he said.

"There is nothing in any law that you are going to find that says it is all right if you are only selling cannabis to your members. It is still drug dealing in terms of the Drugs and Drug Trafficking Act," he added.

Keichel said medical marijuana dispensaries use a different model. Unlike grow clubs, which argue they are essentially gardening services, the pharmacies argue that a section of the Medicines and Related Substances Act allows them to sidestep the Drugs Act altogether.

Section 21 of the act allows for the authorisation of the sale of unregistered medicines – intended to allow people in urgent need of treatment to get access to certain medicines.

This section of the act was relied upon when medical practitioners prescribed Ivermectin, an anti-parasite drug formerly used on horses, to Covid-19 patients.

The dispensaries employ a licensed medical professional, who then prescribes cannabis to 'patients'.

"Some of the dispensaries are purporting to act under Section 21 of the Medicines Act, which you might remember in respect of Ivermectin during Covid. It is an exceptional mechanism that allows you to get hands-on unregistered medicine if you are very sick," said Keichel.

He added that using that provision was not intended to apply to cannabis in this way.

"It's being completely abused. Section 21 never envisaged dispensaries all around the country. You are supposed to be sick and dying and in need of either an experimental drug or a drug that is registered elsewhere but not in South Africa.

Legal Changes Underway

President Cyril Ramaphosa signed the Cannabis for Private Purposes Bill into law in late May.

The bill seeks to address some of these uncertainties by providing clearer definitions for terms and removing dagga as an offence in terms of the Drugs Act. It is also meant to set out the consequences for offences such as dealing in cannabis, providing cannabis to a child and being in possession of "excessive" quantities of dagga.

It is not yet clear what "excessive" quantities of dagga mean.

While Ramaphosa signed the bill into law, the legislation is not in effect yet, as it has not been promulgated – meaning it has not yet appeared in the Government Gazette.

"It's law, but it's not active law. So we are actually still under the Drugs and Drug Trafficking Act in relation to cannabis," Keichel said.

He added that the long wait for legislation meant that grow clubs and dispensaries eventually started operating without waiting for the law to catch up.

"I don't think it is a lack of clarity. It is a lack of patience. People have grown frustrated waiting for an enabling legal regime, so they have just gone ahead and done what they think is appropriate for themselves," he said.

'Please regulate us'

As the SA cannabis industry pins its hopes in the Haze appeal, owners of social clubs have been talking up the economic opportunities that legal certainty would provide.

The owners of Infusion Social Club, which operates a stable of "private, members-only cannabis cultivation and social clubs" in Gauteng and Cape Town, say the grow club model is already a big employer. There is a massive economic opportunity – but for that, there needs to be proper regulation.

The club says South Africa’s budding industry needs clear laws and specific guidelines to thrive.

"We believe that cannabis clubs like ours provide a valuable service by creating a safe, private, adults-only environment, away from the public eye, for consenting adults to enjoy cannabis responsibly," they said.

For Infusion, cannabis law could piggyback on the type of legislation that governs alcohol use.

"This would include lawful permits for small to large-scale cultivators able to supply the local market, on-site consumption permits, event-based permits, dispute resolution boards, and a dedicated regulatory body to manage compliance throughout the supply chain."

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