Cannabiz Africa
https://www.cannabiz-africa.com/blog/6a265f0e9c569ef156136de2
Does the Department of Justice even understand the laws it is trying to enact?
This is the question being asked of the Department of Justice and Constitutional Affairs, which has been identified as the state agency that carries the most blame for the Government’s failure to implement its official policy of developing a regulated cannabis economy that uplifts the rural poor and contributes meaningfully to the GDP.
Now the Department’s own interpretation of the Cannabis Act has been thrown into question by leading South African law firm CDH. In a recent in-depth assessment of the current cannabis landscape, Green Gold or Legal Quagmire?, published on 3 June 2026 ins the Sunday Times Agriculture Magazine, Belinda Scriber and Claudia Grobler argue, that on the face of it, properly constituted private cannabis clubs are not illegal, even if they have not been expressly declared as legal.
They clarify what they call an “area of persistent legal uncertainty” – that is the legal status of entities that have constituted themselves as private, social or grow clubs using a ‘closed loop system’.
This is an excerpt from their analysis, which deals with properly-constituted cannabis clubs:
“The clubs are member-based associations, collectively cultivating and sharing cannabis for personal use, with members paying a membership/club fee.
The structure around these clubs is designed to fall within the permits of the Cannabis Act.
Section 2(1)(b) of the Cannabis Act provides that an adult person may, without the exchange of consideration per occasion, provide to or obtain cannabis from another adult person in a private place for a private purpose.
The Cannabis Act defines “consideration” broadly as meaning “any form of compensation, gift, reward, favour or benefit.
On the face of it, grow clubs therefore do not appear to be in direct contravention of the Cannabis Act – a fee is charged for membership, not for the growth and exchange of the cannabis product itself.
However structured, these clubs are viewed by our courts as the commercialisation of both the cultivation and distribution of cannabis in a setting that can reasonably be considered public – this is inconsistent with the Cannabis Act’s clear intention to limit cannabis use to personal private consumption.
The Western Cape High Court, in The Haze Club (Pty) Ltd and others v Minister of Police and others [2023] 1 All SA 280 (WCC), refused to grant a declaratory order confirming that grow or social clubs are lawful in South Africa.
The matter subsequently went on appeal to the Supreme Court of Appeal. Before this court ruled on the matter, the appeal was withdrawn, leaving the High Court judgement as the leading case on grow and social clubs.
This has the effect that, while the refusal of the declaratory order does not automatically render these clubs illegal, the legal risk for operators and investors in this space is real and should not be understated.”
The last pronouncement by the Department on the issue was in Parliament on 6 March 2026 when the Department’s point man on the Cannabis Act, Makubela Mokulubete, astonished many in the room by declaring in no uncertain terms that private clubs were in contravention of the impending Cannabis Act and that there was no place for them in the current regulatory framework.
Four points stand out from that meeting that give an insight into the Department’s approach:
1. The fact that Mokulubete made the announcement on 6 March 2026, the day after public submissions on the draft regulations had closed, and before the Department had processed them, are indicative of how seriously public input is being taken;
2. The fact that he pointedly flouted government policy in Parliament in front of his colleagues at the DTIC, Health and Agriculture without reproach, is a story in and of itself: in a discussion about opening up market access, his sole contribution to the debate was to confirm the continued criminalization of private clubs;
3. The fact that Mokulubete had the opportunity to explain how the Act would be operationalized and chose not to, was also noteworthy, given the glaring contradiction in which the Act recognizes the constitutional right of citizens to possess and consume cannabis privately, but criminalizes all the pathways to enable citizens to enjoy those rights;
4. The fact that none of the other departmental heads or MPSs questioned Mokulubete on this is also a sign of how much of a grasp the legislature has on the situation and what needs to be done.
The Department’s woes are not getting any better as Ras Gareth Prince’s urgent application to halt cannabis arrests could jeopardize the Act finally coming into law. Prince says the Act should be scrapped altogether and that the South African cannabis community would rather wait for a just and transparent regulatory framework than submit to an Act that Canadian courts have described as ‘an absurdity’.
He also launched a scathing attack on the Justice cluster at the recent Cheeba Summit, accusing the government of apartheid-style police tactics and dismissed the Cannabis Act as “a slap in the face for the dagga community”.
“They talk about needing the Cannabis Act to come into force in order to remove cannabis from the Drugs Act so that it is no longer a narcotic”, he said during discussions at the Cheeba Summit.”Man they could have removed cannabis from the Drugs Act way back on 19 September 2018, the day after the Constitutional Court ruled that the use and possession of cannabis in private was legal. Why can’t they just amend the Drugs Act in the first place” he said. “Why do they need to introduce another Act to do that? Where is the logic?”
Prince echoes the sentiments of the cannabis industry as a whole, expressing his frustration not only at the lack of any meaningful implementation of stated government policy, but also raising alarm at the design faults in cannabis reform.
One of the main problems is the exclusion of cannabis legacy farmers and communities from the Cannabis Act and with no law on the table that formalizes their inclusion. Prince points out that for five years Government has stated that traditional farmers should be central to the NDCP, but no real support has been forthcoming and cannabis reform has marginalized its intended beneficiaries.
In April, Mokulubete said he expected the final regulations for the Cannabis Act to be released soon.
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