When the news of the Haze Club Judgment came through at the end of August, it felt like the entire Cannabis industry was shaken, as could be seen from the resulting Cannabis marches across the country. Judge Slingers, the judge presiding over the application for a declaratory order, had found that The Haze Club’s application for a declaratory order was not sufficient to make a case and therefore dismissed the application.

If you haven’t read the Haze Club Judgment yet, you can read it here:

The application for the declaratory order was based on two requests:

  • First Relief: That the Grow Club Model is in line with the Privacy Judgment of 2018;
  • Alternative Relief: The current legislation relating to Cannabis use unjustifiably limited rights to trade, profession, security and dignity of the person

In this discussion we’ll only be looking at the First Relief and Judge Slingers’ reasons for dismissing the application relating thereto.

After careful deliberation, Judge Slingers stated the following motivations for the Grow Club Model’s malignment with the Privacy Judgment:

1. The Grow Club Model is a socialised space away from the inviolable core of the inner sanctum of private space, limiting the right of privacy, through elements such as co-ownership

Judge Slingers discussed the Privacy Judgment and lingered on the context within which it was supposed to be interpreted. She reiterated the Constitutional Court’s statement reflection that a reasonable expectation to privacy consists of two inquiries – there must firstly be a subjective expectation of privacy, and secondly, the expectation must be recognised as reasonable by society. The point she makes is that the privacy relating to the inner sanctum – one’s home or family life – is more likely to be accepted and respected by society than privacy in a commercial or transactional setting. The Grow Club Model operates outside of the inner sanctum and in the social dimension, where the right to privacy is subject to limitation. She aptly summarises this by saying “You cannot claim the right to be left alone in circumstances where you actively associate with others.”

This way of thought is resonant throughout all the other additional reasons she provided, and actually summarises all of her thought patterns.

2. The entire cultivation process does not occur within a private space

Although members are allocated a private space where their plant is cultivated, some areas were used as communal areas, such as drying and trimming areas. The Minister of Police, in their responding affidavit, also referred to shared equipment and other resources and this informed Judge Slingers’s observation that not all spaces and resources are private, therefore the entire process is not a private one.

3. The member does not have unrestricted / unregulated access to his/her private space

The Haze Club did not allow their members to access the premises without prior arrangement. Judge Slingers found this problematic, because if one’s space is private, it means you can access it how and when you want. If you have to make arrangements to access your private space, the space is not private, it is merely space.

4. Any transportation of Cannabis is still illegal

This was a risk that I’ve identified in the Private Cannabis Club Framework Manual for Set-up & Management, and knew would be a problem in most Private Clubs. The collection and delivery of Cannabis is still illegal as per the Drugs & Drug Trafficking Act 140 of 1992. When The Haze Club’s members shipped them propagation material, they were in contravention of the Drugs Act. When the Haze Club shipped members’ Cannabis to them, they also did so in contravention of the Drugs Act.

5. Section 4(b) of the Drugs Act was contravened – possession

Judge Slingers found that the activities that the Haze Club partook in when they accepted, stored and controlled members’ plants, were in contravention of the Drugs Act. The Drugs Act defines “possess” as “in relation to a drug, includes to keep or to store the drug, or to have it in custody or under control or supervision“. This regardless of the fact that the Haze Club explicitly acknowledges the Cannabis plants as property of their members.

6. Section 5(b) of the Drugs Act was contravened – dealing

Further, Judge Slingers found that the activities of cloning, cultivation, drying, curing, delivery and even the sub-leasing of space was in contravention of section 5(b) of the Drugs Act, meaning, those activities are considered dealing. Her reasoning behind this was that the Haze Club were doing these activities in relation to another person’s plant (their member). This is the ultimate factor, as she was insistent that the cultivation of personal Cannabis cannot be outsourced.

7. Members do not cultivate their own Cannabis

Finally, the conclusion was made that the member has no hand whatsoever, in the cultivation of their Cannabis and Judge Slingers states: “As the grow club model does not result in the members cultivating Cannabis for their own consumption in a private place, it has not been shown that it is consistent with Prince 3 and therefore, lawful.”

The Haze Club submitted an application for leave to appeal Judge Slingers’ judgment on the 19th of September. We wait to hear if the application is approved and in which Court it will be heard. It is probable that the application will be approved, but the chance exists that it might be denied if there are no reasonable prospects that the appeal would succeed. If leave to appeal is granted, it’s envisaged that it will be heard by the end of next year.

In the meantime, Cannabis clubs all over South Africa reacted in shock and with disapproval to the Haze Club judgment. However, being aware of the weight and meaning of the judgment, some clubs took precautionary measures and closed doors temporarily, or activated interim changes to procedures in an attempt to protect themselves, their staff and their members. Theoretically and possibly for the first time, Cannabis Clubs in South Africa actually had an official statement from the law relating to their existence. Luckily, with the submission of the application for leave to appeal, it means that things are back to normal –  Brett states that ‘in terms of section 18 of the Superior Courts Act, the operation and execution of the Judgment is suspended, pending the decision of the application for leave to appeal and the appeal, itself, assuming that the application for leave to appeal is granted.’

Regardless, it would be prudent to consider Judge Slingers’ comments and test your (current, imaginary or future) Club’s model against them. We believe that our Shared / Collective Model may solve most of these concerns and that with slight adjustments, we could still find a viable path, albeit untested.