Brett Hilton-Barber (BHB): Why is the private cannabis club concept such a tricky legal issue for Government to grasp?
Brett Pollack (BP): Because PCCs don’t fit into the boxes that government is used to ticking.
What we would call bona fide Private Cannabis Collectives (PCC) are, in our view, a direct and autonomous manifestations of constitutional rights and, signally, the rights to privacy and the freedom of association.
This makes them legally unique because conventional market-economic, supply-chain regulation seems inappropriate. Not merely because trade is still illegal or because proper harm reduction takes place in a caring community, but also because the beauty of our private Cannabis cultivation and consumption cultures in South Africa are about more than just profit.
Our government struggles with constitutional bottom-up models. It prefers to paint by numbers: tax, license and commodify through top-down, capitalist market-oriented supply chains. Thus far, the Cannabis industry it is imagining is for the most part commercial, pro-capital, and easy to control: each activity slotting neatly into a license, each license attached to a revenue stream.
But bona fide PCCs challenge this. They are self-regulating ecosystems: private communities of adults pooling resources to cultivate and access Cannabis collectively. They ideally function as small-scale, craft, self-sustaining economies, primarily of community.
Despite our repeated attempts and extensive submissions (which were published in the International Cannabis Law Journal), Parliament refuses to recognise the constitutional inevitability that Cannabis is not merely a commodity. That private Cannabis cultivation, use and consumption practices are inherently socio-cultural phenomena: collectively practised by communities of people that share views, lineages, beliefs and cultures about the Plant and its uses and effects.
In other words, government is still struggling to grasp that a legitimate, parallel Cannabis economy might also be informal, non-commercial, social, and constitutional in nature.
In the end, PCCs ask the state to engage with Cannabis as a human rights issue, not just an industry. And that throws the formulaic regulatory machine off balance. This is why government tweaks out at the concept.
BHB: Should private clubs be regulated at all? If so, who should be the regulator?
BP: That’s becoming a loaded question, and to be honest, we don’t have a precise or settled answer at this stage. What we do know is this: properly construed and implemented (bona fide) PCCs are communities of adults exercising decriminalised constitutional conduct. So long as trade remains prohibited, it feels conceptually misplaced to speak of PCCs in the same breath as market players, arm’s-length supply chains, and licensing regimes.
Our position, which we have consistently submitted to Parliament (and which was published in the Cannabis Law Journal referred to in the previous response) is that the responsible, collective exercise of the right to privately use Cannabis must be legally recognised, explicitly, in the Cannabis for Private Purposes Act. Recognition is imperative. Regulation, however, is a more complex and unresolved question.
Part of our ambivalence stems from a deep concern about the state’s capacity to effectively manage two very different paradigms simultaneously:
(1) rights-based, non-commercial ecosystems rooted in the Constitution, and
(2) a commercial, profit-driven adult-use retail market. Even in high-capacity jurisdictions like Germany, we’re seeing claw-backs and difficulties in implementing their originally celebrated ‘two-pillar’ model.
In our view, the courts, rather than administrative regulators, are better positioned to determine whether a given collective is acting within constitutional and legal bounds, and whether and how to impose tax. Judicial oversight allows for incremental, principled development of legal precedent. This, in turn, would help shape any eventual commercial regulatory regime without prejudicing existing constitutional freedoms. By the same token, though, we absolutely do not wish court battles upon anyone.
The current uncertainty is exhausting, and the community deserves clarity!
Simi (Pillay von Graan) is absolutely correct: the PCC model has been widely hijacked. Unscrupulous operators are selling untested, unregulated products to non-members, tourists, and minors, often without even basic age verification or dosage controls. These abuses exacerbate corruption, erode public trust, and undermine genuine harm reduction efforts. If government decided to intervene in response to these harms, we would no doubt support the impulse.
But if PCCs were to be formally regulated, that would require the election of a specific legal and operational model, governance structures, entity types, relationships, due diligence and harm reduction standards, traceability thresholds, reporting into the International Narcotics Control Board. A bit of a political minefield. We’re here to inclusively provide services to the community and uphold constitutional rights, not lobby for one archetype of PCC over another.
In the end, though, if PCC regulation does come, it must be grounded in the lived realities, cultures, and rights of the people, not imposed to fix what the State has yet to understand.
BHB: Harambe has set up a number of private clubs across the country on a self-regulatory model; have there been many issues with law enforcement in the different areas accepting the concept?
Marleen Theunissen (MT): To date, no club that’s implemented our Shared/Collective Model (SCM) has been raided, successfully prosecuted or shut down. We cross our fingers every time we’re asked this question. We train our clients to educate their members and any investigating SAPS officials on the constitutional grounding of their operations, to maintain clean and auditable systems, and of course, operate privately. There is unfortunately a lot of uncertainty from SAPS themselves who don’t understand the law surrounding Cannabis (much less PCCs, which don’t have a law to reference) and there isn’t really a way for us to negate that. So, we encourage the PCCs we work with to be transparent, community-oriented, and well-documented so that if they do get investigated, there’s a clear record to demonstrate their constitutionality and lack of commercial intent – in a court of law.
BP: The reality is: SAPS members are often as confused as the rest of us because there’s no formal recognition in law of bona fide PCCs. The withdrawal of the Haze Club matter in the SCA didn’t bring us the clarity we hoped for regarding the legality of cannabis clubs. The National Commissioner of the SAPS issued a directive on 23 August 2023, instructing all SAPS officials to stop harassing the Cannabis community while they are exercising their Cannabis Private-use Rights in private spaces, that private Cannabis can be jointly owned.
Then in December 2024, the National Prosecuting Authority issued a circular suggesting the legitimacy of “private clubs” described as self-sustaining non-profit establishments that share the supply chain functions among their members and give back to the community.
We feel that these aspects coincidentally speak quite nicely to our Shared/Collective Model and we ensure that our clients are aware of these developments, even though not legal in nature.
BHB: How exactly does the Harambe model work?
MT:In a nutshell, our Shared/Collective Model (SCM) is built on the idea that our Cannabis private-use rights (the right to possess, consume and cultivate Cannabis) are only truly accessible when paired with the freedom of association. The PCC is incorporated as a non-profit entity within which members contribute toward the collective cultivation of a jointly owned Cannabis crop destined exclusively for their own use, appointing cultivators and processors in a contractual capacity. All contributions are pooled to further the club’s primary constitutional objective: enabling the safe, responsible, informed, and equitable exercise of members’ twin constitutional human rights.
BHB: The DTIC is putting together a framework for the commercial trade in cannabis. Will there still be a role for clubs if adult-use consumption is regulated along the lines of say, alcohol or tobacco?
BP:This question needs its own essay. Briefly though, when we read the policy document, it wasn’t actually immediately apparent to us that the adult use market is up for commercialisation with any sort of urgency. But, assuming you’re right and that adult use consumption will be regulated akin to the way alcohol and tobacco is regulated, we think PCCs will have a pronounced role to play for a number of reasons.
One of many: if the dictates of harm reduction are codified into law, the normal impersonal retail market will ordinarily be ill-equipped to provide the type of educational care required. Models such as those found in alcohol and tobacco regulation are top-down, profit-driven and about mass-production. PCCs on the other hand are bottom-up, community-driven and about craft and smaller-scale production.
We believe that many Cannabis communities may well be economically or culturally excluded from the mainstreams of regulated industry, and PCCs provide a safe space for them to celebrate their craft Cannabis culture in private communities.
MT:Also, if you consider how difficult it is to define “personal consumption”, Government should be learning from the mass amounts of data that PCCs collect on the consumption of Cannabis by its members, and use that as a departure point for determining the limitations it wishes to place on the cultivation and possession of Cannabis. Nevermind that, PCCs are from the outset better geared towards:
● Harm reduction, through consumption limits, education, quality control, and more (not a priority in a commercial tobacco or alcohol store);
● Cultural preservation;
● Access for communities that don’t want to be licensed, like the AmaPondo in the Eastern Cape;
● Craft cultivation and the inclusion of craft cultivators and processors; and
● Empowerment of women, elders, and smallholder growers
So, in short, I don’t think that commercialisation would make PCCs less relevant or legitimate.
BHB: Do you think there’s a need or a role for a single body representing private club interests in dealing with the Dept of Justice, and if so, what should be its focus?
MT: I think we need a representative body for all things Cannabis, not just PCCs. A separate body, made up of representatives from every Government department with some experts from the private sector to ensure we stay true to the plant and Cannabis culture.
But PCCs should only be one part of things they need to deal with. The first thing on its PCC agenda should be finding some sort of standardisation in all this: the very controversial topic of defining what a PCC actually is, how it should be operated and who it should be accountable to – if anyone (seeing as it mostly expresses as a self regulating phenomenon).
A close second agenda item should be illegal SAPS raids that turn into armed robberies, a phenomenon we see happening with increasing frequency. Lastly, as with anything related to Cannabis for the foreseeable future, education is sorely needed – for consumers, cultivators and lawmakers alike.
BP:I think that in order to have a single body representing what you refer to as ‘private club interests’, you need to first have a widely adopted notion of what a ‘private club’ is in the first place. Who owns the Cannabis? Can a ‘private club’ operate for profit? Can members trade their Cannabis at a ‘sharing station’? There are dozens of critical legal and then operational considerations that need to be factored into the determination of what a ‘private club’ even is.
This is because the law does not expressly recognise the concept.
Indeed, there are many operational models floating about – from bona fide to fronts for potshops, and beyond. Therefore, in order to have a single body appropriately representing the interests of the space, the members of such a body would need to universally adopt a single model.
While we are certain of the imperative to recognise the constitutional inevitability of the collective exercise of our Cannabis Private-use Rights, I properly hate playing politics and, while I fully back the bona fides and spirit of our model and offering, I am not in the business of lobbying for one model of PCC over any other.
Contact Harambe Solutions directly:
Brett Pollack: brett@harambesolutions.co.za
Marleen Theunnisen: marleen@harambesolutions.co.za
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