A rising tide lifts all boats and this new feature opinion on cannabis seeks to raise the consciousness of readers on cannabis related topics so as to illuminate the legal wins and losses across the board promoting industry growth.
Join us through this series as we unpack the legality of cannabis, analysis into the social, medical and industrial impact of cannabis legalisation and seek to address both the pro’s and the cons of the proposed South African cannabis paradigm.
We pry open sensitive topics like indigenous claims to cannabis, police raids, multi-million rand deals and the promise of a sunrise crop for South Africa.
The Prince judgment in 2018 granted a judicial right to smoke, possess and grow cannabis in private, we have seen a host of legal schemes purporting to facilitate the handling of cannabis between adults.
With the water as muddy as the Brak river, it is difficult to ascertain what exactly is legal when it comes to accessing cannabis.
Despite the prevalence of the black market for cannabis, law enforcement agencies have targeted cannabis clubs, dispensaries, and other seemingly legitimate operations. This raises questions about the actual legality of purchasing cannabis.
Cannabis Clubs
Private cannabis clubs, also known as cannabis social clubs, are associations of members who share an interest in cannabis cultivation and use backed by their Constitutional right to Privacy and Freedom of Association.
Internationally, such clubs have facilitated responsible distribution in countries like Spain, the Netherlands, and the USA.
These clubs operate based on three key principles: non-profit operation, supply matching demand, and controlled point of sale, aimed at minimising potential cannabis-related harms.
Non-profit operation ensures that clubs do not prioritise profit maximisation, thereby mitigating marketing efforts to increase sales or initiate new users.
The principle of supply matching demand involves members communicating their monthly cannabis needs, with the club sourcing supply accordingly from contracted cultivators.
Controlled point of sale ensures transactions occur in a safe space, limiting access to adults and preventing third-party consumption.
These principles have facilitated successful distribution of cannabis for responsible adult use, with track-and-trace methodologies ensuring transparency and regulatory compliance abroad.
While South Africa has various private club models, some operate without sufficient privacy measures, risking legal repercussions for both buyers and sellers.
Despite attempts by industry pioneers to gain legal recognition for private cannabis clubs, legal challenges persist.
Judge Slingers' ruling in the Western Cape High Court Haze Club case deemed private clubs "not private enough," prompting an appeal to the Supreme Court.
Amidst legal uncertainties, private cannabis clubs could potentially serve as a regulated point of sale, ensuring product quality, membership verification, and tax compliance.
Medical Dispensaries
The South African Health Products Regulatory Authority (SAHPRA) is the sole authority authorised to issue Medicinal Cannabis licences.
Over 100 such licences have been issued to date.
Indigenous organisations, like the African National Healers Association, issuing their own "medical licences," simply lack legal validity as they have not been delegated the authority.
Under Section 22A of the Medicines Act, doctors can prescribe alternative medicines, including cannabis, subject to renewal every six months.
Medical aid coverage for cannabis purchases is possible, provided the dispensary adheres to legal requirements.
However, recent incidents, such as the THC saga, highlight the importance of compliance with strict operating procedures to avoid legal repercussions.
SAHPRA inspectors found a breach in operating procedures when conducting their inspection at the THC dispensary in Joburg.
While medical access to cannabis is feasible through registered doctors and compliant dispensaries, many individuals face financial challenges accessing this scheme.
The prevailing black market underscores the urgency of clarifying legal frameworks surrounding cannabis distribution.
In my view, private cannabis clubs can form an integral role in responsible non-commercial adult cannabis distribution. As a controlled point of sale we have certainty in product, certainty of membership/age, and can facilitate the payment of tax for the operation.
If we interpret the definitions set out in the Cannabis Bill to construe a broad interpretation of ‘private place’ to include cannabis clubs and a narrow interpretation of ‘dealing in’ to exclude sharing cannabis between members, we do not even need to amend the existing Bill to allow for non-commercial transactions.
The legality and regulation of cannabis distribution in South Africa remain convoluted.
Private cannabis clubs and medical dispensaries offer potential avenues for responsible access to cannabis, provided they adhere to legal standards.
Clarifying legal frameworks and addressing compliance issues are essential to curbing the black market and maximising tax revenue.
However, achieving this balance requires careful consideration of various stakeholders' interests and perspectives.
Josh Swart consults cannabis farmers and businesses surrounding the legality of cannabis both medically, industrial farming and private use. Starting in 2017, his seven years of active lobbying at Parliament and industry consulting finds an acute legal opinion that is sharp to call out illegal operations and quick to facilitate the industry access for those interested in cannabis opportunities.
IOL Opinion