While cannabis is being legalised in many countries around the world, South Africa still finds itself in a state of legislative limbo, with more and more businesses offering “legal weed”.
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Both medicinal and recreational cannabis are in high demand and growing acceptance has resulted in improved access to the plant and its products.
However, despite an eased approach to cannabis in recent years, a “legal grey area” continues to cause widespread confusion in a largely unregulated industry.
The medical cannabis dispensary
Prospective patients of Canna Studio in Long Street are required to complete a Section 21 intake form before any cannabis products are dispensed.
The form states that before any medicine may be sold in South Africa, it must be approved by the South African Health Products Regulatory Authority (SAHPRA), the body that certifies that the medicine is safe, of good quality and effective.
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The form explains that, in exceptional circumstances, SAHPRA may permit access to unregistered medicines through the process
Applicants are required to provide a copy of their ID and personal information including address, contact information and a full description of their diagnosis (eg: chronic pain, anxiety, epilepsy etc).
They must then await a consultation call from the studio’s medical practitioner for the approval process in order for the approval process to continue.
The recreational cannabis club
One Culture is a community-based private social and recreational club model and social media platform that uses rudimentary blockchain to track and trace cannabis grown on private property “within the confines of the law,” with Nature’s Farmacy lounges in Hermanus and Stellenbosch.
Membership is offered online to any adult over the age of 18 who already consumes cannabis and would like to “legally” have their own cannabis cultivated, collected and consumed in a safe environment with like-minded members.
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Members are able to join the club for as little as R200 for four months, while an annual membership costs R500.
“A master grower enables members by cultivating their own legally grown cannabis for their own private consumption,” explains their website.
The Haze Club
Meanwhile, as clubs and dispensaries continue to open across the country, raids are occurring and operators are finding themselves at odds with the law.
In August 2022, Judge Hayley Maud Slingers ruled that the court could not declare a business model designed to sidestep the Drug Trafficking Act as legal.
In a press statement issued by their legal representatives, the Haze Club explained that they operated on a basis whereby a person or entity leases out land, equipment and gardening services; grows, on behalf of its clients, plant material, including cannabis; and does not own or provide its clients with cannabis, cannabis seedlings or feminised cannabis seeds.
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The state argued that the club did not operate in a private space and, therefore, ran afoul of the law.
In her ruling, Judge Slingers said that for the court to allow a grow club model to operate in the absence of statutory or legal regulations and guidelines “could have the practical effects of legalising dealing with cannabis”.
The legal expert
Meanwhile, Medical and Recreational Cannabis Department lead and associate at Schindlers SI, Danmari Duguid, explained that while there were still many legal concerns regarding the illicit distribution of cannabis and its products, many clubs were operating in a legal grey area.
The firm rose to prominence in 2013, when it took on the so-called “Dagga Couple” as clients in their successful challenge to have the laws prohibiting cannabis use and possession declared unconstitutional in South Africa.
The firm was also instrumental in the 2018 “Prince judgement” which allowed for the possession of cannabis for personal use on private property.
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“The judgement raised questions around how far the right to privacy extends,” Duguid explained. “As was the case with the Haze Club, some offer a service to grow cannabis on behalf of their members. This matter is currently still before the court after they appealed the decision.”
“The Cannabis Bill is also still before parliament and while we are eagerly anticipating the outcome, the law is still unclear at this stage.”
Duiguid added that there was also an alternate operating framework that was often implemented in South Africa known as the Encod Model.
“The Spanish law is similar to South African, where citizens have a right to privacy and association.”
“Under the Encod model, clubs operate very much like a stokvel as cannabis produced by members belongs to the collective.”
She also emphasised that it was important to distinguish between the recreational and medicinal cannabis markets, adding that different laws apply in each instance.
“Each operates in their own distinct space and falls under different parts of the law.”
“While recreational use relates largely to the Prince judgement, medicinal use falls under SAHPRA.”
“Patients have always been able to receive unregistered medicine, including cannabis (through a section 21 application).”
“However, medical cannabis is strictly regulated and is solely intended for patients with very serious conditions who genuinely require it.”
“Among the differences is that, in extreme instances, children are actually able to have access to medicinal cannabis, through the correct, legal channels.”
“This is not the case in the recreational industry where users have to be over the age of 18.”
“Section 21 is really intended for patients with serious medical concerns but there have been many more people that are applying.”
“We always advocate for the proper process to be followed.”
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Pictures: Supplied
