The phenomena of the Private Cannabis Club (PCC) and its subsequent models have received much attention from the South African Cannabis community since its appearance after the Privacy Judgement of 2018. The milestone judgement allows the possession, cultivation and consumption of Cannabis in a private place, for personal consumption. It is considered the first victory in a series of battles ahead for the full legalisation of Cannabis.

The Judgement leads to some practical problems, though. It seems the only way one can practice this new-found right is to cultivate your own Cannabis. Some hurdles come to mind, such as having a limited space or no garden space at all, not having the time, resources or knowledge to cultivate the plant or simply not having the desire to cultivate anything, let alone Cannabis. These reasons cannot prevent a person from practicing their right to consume Cannabis, as this will amount to being unconstitutional. PCCs followed shortly after the Privacy Judgement as the Cannabis community’s attempt to bridge the gap that the aforementioned problems inevitably leave.

In the absence of clear legislation that speak specifically to the PCC’s existence and operation, many interpretations of the Privacy Judgement have been made and use as the basis of the formation of PCCs. Myself and Brett Pollack, a lawyer advising in the Cannabusiness space, have done extensive research on the topic in our own attempt of identifying appropriate and argumentative guidelines that a PCC – any PCC – can use in its operation. We’ve documented our findings in the Private Cannabis Club – Framework Manual for Set-up and Management, which we’ve made available to you. In the Manual, we lay out the two possible Private Cannabis Club models that we’ve designed and discuss the specifics at length.

Personal / Private Model

Personal / Private Model

The Personal / Private Model is true to the Privacy Judgement and relies only on that piece of legislation to justify its existence. Under this Private Cannabis Club model, the PCC cultivates all of the Cannabis that belongs to its members at its private premises. Members enter into a contractual agreement with the PCC to authorise the PCC to cultivate Cannabis on their behalf. It’s important to note that the Cannabis must at all times belong to the member, even though it is kept at the PCC’s premises and cultivated by the PCC’s employees. This means that the member must either provide their own genetics to the PCC for the purposes of cultivation, or the PCC may donate, completely free of charge, a clone or seed to a member, which must then be tagged accordingly and throughout its life cycle, to allow for track and traceability proving ownership.

The PCC would then allocate a specific section of its cultivation area to the member where their plant is kept and cultivated by the PCC. The information relating to the specific space the member’s plant occupies, along with the plant’s tagging details, must be included in the contractual agreement that the two parties would sign. The Lease and Horticultural Services Agreements would include details such as:

  • the particulars of the premises where the member’s crop is cultivated;
  • the particulars of the cultivation services provided to the member;
  • the cultivation participation required from the member;
  • the cultivation and rental fees charged by the PPC to the member; and
  • details relating to the member’s selected mode of cultivation (for e.g. indoor vs outdoor), chosen strain, etc.

Once the member’s Cannabis has been harvested, dried, trimmed and cured, the PCC may notify the member for collection purposes.

PCC Obligations towards the Member

These are a few of the obligations the PCC may have towards its members:

  • Providing the member with access to the PCC and its services;
  • Cultivating Cannabis in line with the standards reflected in the Horticultural Services Agreement;
  • Ensuring and being able to prove that the Cannabis is owned by the member via adequate tagging and tracing methods;
  • Ensuring that the crop is secure, and that access is strictly limited to the PCC’s cultivating employees and members.

Member Obligations toward the PCC

In turn, the member may have the following obligations, among others for sure, towards the PCC:

  • Payment of fees according to the Agreements signed between the parties;
  • Adhering to the PCCs rules of operation and indemnifying the PCC against damages resulting from any breaches of PCC rules and all applicable criminal and other laws;
  • Participating in the cultivation of their crop according to the Horticultural Services Agreement.

The PPM is arguably an easier Private Cannabis Club model to defend legally because it is based solely on the right to privacy, making it more straightforwardly about the exercise by individuals of their privacy-based Cannabis rights.

Shared / Collective Model

Shared / Collective Model

The Shared / Collective Model also relies on the Privacy Judgement, but also leans on the right to freedom of association, as per section 18 of South Africa’s Constitution. This model resembles the ENCOD model found in Spain and the argument goes that simply because cultivation and consumption must be done in private, doesn’t mean it has to be done alone. Therefore, this Private Cannabis Club model is much more suited to the Cannabis community and their eagerness to come together and socialise, as it encourages the coming together, sharing of knowledge and activities, and achieving a common purpose – while exercising their right to consume Cannabis personally and privately. Although there certainly is logic to the argument, the question remains whether the Privacy Judgment’s reference to personal and private cultivation and consumption preclude shared or collective cultivation and consumption in private.

Due to the collective ownership of crops and Cannabis – meaning all Cannabis cultivated at the PCC belongs to and is shared by all members of the PCC – there is less emphasis on tracking and tracing requirements in this model. The PCC would require that members participate in the cultivation of their crop or alternatively, contribute to the PCC to cover their share of expenses in one of the following ways:

  • members may participate in cultivation activities (not for remuneration, but rather to contribute towards their share of Cannabis); or
  • members may contribute various resources to the PCC (grow medium, seeds or clones, nutrients, money, etc.). Members are not to be compensated for participation or contributions; these are done in order to cover the member’s share of the expenses related to the PCC.

In order to formalise the relationship, it’s recommended that PCC enter into Membership Agreements with its members, to set out the member’s involvement, requirements and access to the PCC premises – clubhouse and services. The Membership Agreement could also contain the Member Needs Assessment, a synopsis of the member’s consumption habits to enable the PCC to plan its supply. Alternatively, the PCC might endorse a maximum plant-to-member ratio. Additionally, the Membership Agreement must clearly state the obligations owed by the two parties, to each other, some of which I mention below.

PCC Obligations to the Member

Via the SCM, the PCC might owe the following, among other, obligations to the member:

  • Providing the member with access to the PCC and its services;
  • Careful management of members’ contributions towards the cultivation operation;
  • Managing the cultivation process through the provision of space, resources, planning procedures, etc.
  • Facilitating a (physical and/or virtual) environment where Cannabis enthusiasts can come together and share experiences and knowledge.

Member Obligations to the PCC

  • Payment of fees / Submission of contributions according to the Membership Agreements;
  • Adhering to the PCCs rules of operation and indemnifying the PCC against damages resulting from any breaches of PCC rules and all applicable criminal and other laws;
  • accurately disclosing their consumption habits to enable the PCC to plan its supply accordingly;
  • abiding by the PCC’s rules / code of conduct.

Although there are many creative ways in which PCCs may argue in favour of their existence, it’s essential to remember that PCCs are not yet legal, nor illegal – the SA government has not had a chance to decide on the legal status of the concept of a PCC. Until solid legislation relating to PCCs are passed, there is still much risk attached to operating PCCs and careful consideration should be done before a Private Cannabis Club model is implemented and utilised.

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