Lawyer Josh Clarke (pictured here) has been invited to address the Stellenbosch University Faculty of Law Criminal Law
Colloquium at the end of September this year. To this end he has written a paper Defining the and the Limits of Privacy-based Decriminalization: Criminal Liability and the Emergence of Cannabis Social Clubs in South Africa which he has shared on Linked In.
Swart, a Stellenbosch law graduate himself, says private cannabis clubs fall outside the current regulatory framework and that it is up to the Department of Justice to provide clarity or risk a continuing breakdown of law and order.
He said there were three immediate options available to the Department:
1. Create a section in the regulations of the Cannabis for Private Purposes Act that recognized and regulate the private club model system;
2. Draft a completely new Cannabis Private Clubs Act that provided a legal non-commercial framework for them to exist in.
3. Draw up an entirely new Cannabis for Commercial Purposes Act that dealt with all aspects of cannabis, including the licensing and regulation of private clubs
Swart, who was also a speaker at ICS 2026 in Cape Town, says that criminalizing private clubs was in neither the government’s interest nor the consumer’s. This created an unnecessary and inappropriate burden on the state, particularly given that the National Cannabis Master Plan was trying to promote access to the plant.
One Option: Amend the Cannabis Act to Include Private Clubs
“The most immediate reform option would be the introduction of a statutory exemption or licensing framework within the Cannabis Act” says Swart.
“Parliament could create a narrowly defined category of private cannabis clubs operating subject to prescribed conditions, including membership restrictions, age verification, cultivation limits, record-keeping requirements, product testing and diversion controls.”
He says such activities would be excluded from the definition of dealing.
“This approach would require minimal legislative disruption and could be implemented through amendments to the existing Act and Regulations”.
The main problem is that the Act was never designed as a semi-commercial or commercial statute and was more concerned with private possession.
Better to Come Up with an Overarching Cannabis Law that Governs Commercial Trade
Swart says a more bold and sustainable alternative would be the drafting of an entirely new cannabis act that governed commercial trade.
“Such legislation would move beyond cannabis clubs and establish a regulatory framework for the cultivation, processing, distributing, retail supply, exports and adult-use access. Cannabis clubs would become one component within a broader cannabis economy rather than a standalone regulatory category”.
Swart says a complete legislative overhaul would enable government to draft law in accordance with the National Cannabis Master Plan and the commercialization policy draft under discussion.
“It would also provide an opportunity to resolve the ongoing tension between the Cannabis Act, the Medicines Act and commercial policy”
The main disadvantage of this approach is that it will take a long time to conceptualize and implement.
Business Licensing Bill a Possible Future Option
Swart said the recently proposed Business Licensing Bill could be a useful administrative platform through which licensed cannabis clubs could operate and be monitored.
However, he pointed out that the bill is not itself capable of resolving the criminal liability associated with clubs, and that Parliament would first have to create a lawful category of cannabis club activity.
In the end, government will have to devise a framework for clubs because they are a reality and to do this there needs to be a clear distinction between legal trade and illegal drug trafficking.
“Ultimately our regulators should continue to prevent illicit drug trafficking and intervene where serious drug offences are committed – yet we cannot throw private cannabis clubs which maintain levels of legality through practices like paying taxes, controlled point of access to age appropriate members, and testing the cannabis ensuring it is fit for consumption – into the same category is serious drug offenders and black market players.
The Age Old Duck Test
But in the meantime, warns Swart, private consumption may be a constitutional right but it is an unstable foundation to create a collective cultivation and access model.
“For those seeking an opinion on private cannabis clubs may it be unequivocally known that dealing in cannabis for consideration is punishable by 10 years imprisonment and/or a fine. If it looks like a duck and quacks like a duck, it probably is a duck. If it looks like a sale transaction and the buyer leaves the cannabis store after ‘sharing’ – it will be construed as a sale transaction and a breach of the Cannabis Act”.
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