Court rules grow clubs do not constitute “private use”
The Haze Club is – or was – a cooperative-type arrangement whereby individuals brought their own seeds to the club to be cultivated by horticulturists, in return for the harvested and dried plant for their private use when ready. Grow clubs like this, claims owner Neil Liddell, enable those without access to land for cultivation to exercise their constitutional right to grow and enjoy cannabis for private use. Denial of this right amounts to discrimination as, for historical reasons that still impact society, black people and people of colour are more likely to reside in high-density housing such as shacks or apartments where there is no land available on which to grow cannabis. The fee paid to the club is for horticultural services, not the cannabis itself, and therefore no cannabis is sold or “dealt”.
Liddell’s premises were raided in October 2020 and the plants growing there were seized. Liddell and an employee were arrested. The Haze Club appealed the case in the Cape Town High Court. Liddell was relying on the Prince ruling, which found that it was unconstitutional for the state to criminalise the possession, use or cultivation of cannabis by adults for personal consumption in their own homes and “properly designated places”. However, the State’s case was based on the fact that the club did not operate in a private space and therefore was in breach of the law.
The judge in the case, Judge Hayley Maud Slingers, ruled against The Haze Club (THC – get it?). She said that the grow club model, operating in the absence of statutory or legal regulations and guidelines, “could have the practical effects of legalising dealing with cannabis”. Use of a grow club outsources the right to cultivate cannabis for private use, and the law as it stands does not allow for that right to be outsourced.
Legislative vs. judiciary decision
This issue is likely to be ongoing, with an appeal expected. As the Cannabis for Private Purposes Bill is still before Parliament, we can assume legislation will be a dynamic process. The Haze Club is only one of many grow clubs that have sprung up in the wake of the 2018 Prince decision. The attorneys who represented The Haze Club called the dismissal of the application “a narrow interpretation of the right to privacy, what constitutes a private space and the limitations on private cultivation of cannabis, as envisaged by the Constitutional Court in Prince.”
Judge Slingers, on the other hand, felt that it was beyond the remit of the court to interpret the law to this extent. She said, “It may be that the legislature envisages the legislation hereof in the future, but this does not mean that the court should anticipate it. The legalisation of dealing and cannabis concerns policy issues and falls within the realm of the legislature, not the judiciary.” Operating a grow club is, until the law is changed to specifically permit it, deemed to be a criminal act in terms of the Drug Trafficking Act and conviction can lead to imprisonment.
Which Act applies to cannabis grow clubs?
Currently, cannabis falls under schedule 2 of the Drugs and Drug Trafficking Act. However, if it is removed from this Act, as proposed in the Draft Cannabis for Private Purposes Bill, the drugs act will no longer apply to cannabis, whether the whole plant or small quantities of it. At that point only the Medicines and Related Substance Act will apply to cannabis. It is yet to be seen whether cannabis grow clubs will be part of that regulatory landscape or whether there will be specific legislation to deal with the clubs.
All we can say is: watch this space!
Although the changes to cannabis use legislation are fairly well known by now, the Bill has still not been enacted. Therefore, any encounter with the law regarding cannabis possession and use is best handled with the help of an experienced bail attorney. Cape Town Bail Attorneys, Simon Dippenaar & Associates Inc. is a law firm in Cape Town, and also in Johannesburg and Durban, who are experts in criminal defence, with a reputation for handling after-hours bail. You can contact bail lawyers 24/7and know that your call will be answered. Call Attorney Simon Dippenaar on +27 (0) 86 099 5146 or +27 76 116 0623.
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