The applicant failed to persuade the Western Cape High Court to extend the right to privately cultivate cannabis established in the Minister of Justice and Constitutional Development and Others v Prince [2018] ZACC 30 to grow clubs.
In the Prince case, the court held that the prohibition of cannabis use is unconstitutional in as far as it encroaches on the right to privacy – the court legalised the following:
- the use and possession of cannabis in private by an adult for personal consumption; and
- the cultivation of cannabis by an adult in a private place for personal consumption in private.
Since the Constitutional Court judgment, cannabis clubs have mushroomed across the country.
In the Haze Club (Pty) Ltd & Others vs Minister of Police & Others WC 2022 the applicants were participating in a grow club model for the cultivation of cannabis. The applicants operated a grow club which offered their professional horticultural services of cultivating cannabis on behalf of the grow club members. The Haze Club would lease its land, at a fee, to its members in order to grow and cultivate cannabis tended by the applicant for the members’ personal use. The applicants compared this model to hiring a gardener. The Haze Club asked the court to declare sections 4(b) and 5(b) of the Drugs and Drug Trafficking Act of 1993 (the Drug Act) and section 22A(9)(a)(i) of the Medicines and Related Substances Act of 1965 unconstitutional in as far as they do not allow for possession of cannabis through the grow club model nor allow for acquiring horticultural services from experienced third-parties.
In the delivery of its services, the Haze Club, would take clones from a mother plant of its members to be used by other members to extract seeds and cultivate cannabis, the court held that this was in contravention of section 5(b) of the Drugs Act as it amounted to “dealing in” cannabis.
The High Court held that the Prince judgment emanated from the constitutional right to privacy and did not intend to legalise the general possession, use or cultivation of cannabis in the country. The grow club model moved away from an individual inner sanctum to a more communal sphere rendering the right to privacy subject to a greater limitation. The applicants and their members were not prevented from using or cultivating cannabis — they were merely prevented from outsourcing that right.
The court reiterated that the issue of dealing and general (not private) consumption of cannabis falls within the realm of the legislature, not the judiciary.
Operating a cannabis grow club is therefore still deemed to be a criminal act in terms of the Drugs Act and a conviction can lead to a fine or imprisonment.
