Unravelling South Africa's Cannabis Laws - From Court Rulings to Proposed Bills
Let's break down the legal side of Cannabis in South Africa – what happened, what's being proposed and what you need to know.
*Disclaimer - this blog does not constitute legal advice. Legal advice should only be taken from registered legal practitioners.
Landmark Ruling: The Constitutional Court Case - CCT108/17 of 2018
A significant turning point for the laws surrounding Cannabis was marked by the Constitutional Court case CCT108/17 of 2018, a groundbreaking ruling that has almost decriminalised personal Cannabis use. This landmark decision followed numerous unsuccessful attempts and legal battles, including the Medical Innovation Bill introduced in parliament by late MP M. Oriani-Ambrosini and the persistent efforts of activists like Gareth Prince, who is a practising Rastafari who was denied access to practice law in the 1990s based on his previous two Cannabis possession charges and his testimony to the bar that due to his Rastafari faith, he will continue to use Cannabis. He started lawsuits and actions from then on, and it was ultimately his case that landed in the Constitutional Court. Other notable attempts were made by Jeremy Acton, the founder of the Dagga Party, the Dagga Couple who established Fields of Green for All, and Andre du Plessis, an activist known for peacefully lighting up a joint on live TV during a NEWSROOM interview on SABC when Cannabis was still highly illegal.
Before the Constitutional Case, the case known as the "Trial of the Plant" was ongoing and spearheaded by the infamous Dagga Couple. Despite the Dagga Couple's efforts, their "Trial of the Plant" case was hampered by the state and anti-Cannabis NGOs who dragged it out and employed delay tactics. Fields of Green for All even brought in over five top Cannabis experts, which cost millions. They, unfortunately, had to return home before completing their testimonies due to the delays - only one expert was able to take the stand to testify. The case remains ongoing and seeks comprehensive legalisation of Cannabis for both medical and recreational use, with a Canadian-style legal framework ensuring responsible regulation. Additionally, it aims to uplift communities and people like the impoverished Eastern Cape farmers through registration and cooperative sales of their Cannabis harvests, similar to other agricultural systems.
After prevailing in the Cape High Court, the Constitutional Court case was initiated. The state, unwilling to concede defeat, made every effort to maintain the total illegality of Cannabis and thus appealed the high court ruling. As a result, the case was elevated to the highest court in the country.
What was determined at the Constitutional Court Hearing?
The Constitutional Court hearing determined that sections 4(b) and 5(b) of the Drugs and Drug Trafficking Act 140 of 1992, along with Part III of Schedule 2 of that Act and section 22A(9)(a)(1) of the Medicines and Related Substances Control Act 101 of 1965, are inconsistent with section 14 of the Constitution. This inconsistency arises from the criminalisation of the private use, possession, or cultivation of Cannabis by an adult for personal consumption in private.
This meant that Cannabis was almost decriminalised for private use and cultivation by adults. The state was given 24 months to rectify the laws to ensure their constitutionality, a task they have not yet completed.
While the almost decriminalisation covered private use, possession, and cultivation, it was grounded in the idea that growing, using, or storing Cannabis on private property doesn't provide a valid reason for the state to infringe on an individual's right to privacy. Thus, invading privacy for Cannabis related reasons is considered unconstitutional unless concrete evidence of dealing exists.
The court's decision did not address the issue of buying or selling Cannabis, and the court left it to the state to define reasonable limits for cultivation and storage for private use, a task still pending to this day.
Proposed Cannabis for Private Purposes Bill B-19-2020
In response to the ruling, the government introduced the Proposed Cannabis for Private Purposes Bill B-19-2020. This was the first attempt by the government to create Cannabis laws. It suggests a maximum of four plants in flower and 1200g of dried Cannabis per adult on a property. Despite being accepted by parliament for public comment, this bill has not been passed into law. Confusion persists, with some mistakenly believing it is already in effect, including some law enforcement officers.
The B-19-2023 Working Document.
A subsequent development is the working document B-19-2023, which changed after public consultation. Unlike its predecessor, this proposed bill places no limits on the number of plants or the amount of Cannabis possessed by an individual for personal use as long as there is no evidence of dealing. This flexibility accommodates scenarios like farmers in the Eastern Cape cultivating Cannabis for non-psychoactive purposes.
SAPS Directive for Cannabis-related Arrests 23-08-2023:
Crucially, the South African Police Service (SAPS) issued a directive on 23-08-2023 regarding Cannabis-related arrests. This directive is currently active, and any SAPS member not adhering to it will face disciplinary action. According to the directive, law enforcement officers are prohibited from arresting individuals or confiscating plants, dried Cannabis, or equipment if these items are kept in a private space for personal use. The number of plants or related items, like scales or jars, does not constitute evidence of dealing. Possessing, weighing, or storing Cannabis in private for personal use is not illegal, and no arrests or confiscations should occur under these circumstances.
In cases where law enforcement suspects Cannabis dealing, the officer must consult with the court and prosecuting authority before taking further action. Failing to do so opens the SAPS to civil lawsuits, including charges of property destruction and unlawful arrests.
Section 21 Applications for Dispensaries
In a noteworthy move, Cannabis and THC have transitioned from Schedule 7 (illicit drugs without prescription options) to Schedule 6, alongside substances like Ritalin and opioid painkillers. This adjustment implies that medical doctors can now technically prescribe Cannabis. However, it's important to note that as of now, no Cannabis medicine is officially registered in South Africa and available at pharmacies.
The surge in dispensaries reflects this gap in official channels. Here's how they typically operate: by paying a fee, individuals engage with a healthcare professional who completes a Section 21 application outlining the reasons for needing Cannabis. Upon approval, the dispensary can legally provide Cannabis sourced from a SAHPRA-registered facility. While this process involves what some consider a loophole, as Section 21 applications are typically reserved for severe medical cases, others argue that patients experiencing substantial relief from serious conditions justify such applications.
For instance, elderly or disabled individuals who cannot cultivate their own medicine now have access to a variety of products through these dispensaries. The debate around Section 21 applications continues, balancing concerns about potential misuse with the undeniable benefits experienced by many patients.
Important Takeaways.
It's essential to understand that the term "private" in South African law refers to a place not normally accessible to the public, encompassing various private spaces like cars, pockets, bags, and handbags. The legal situation surrounding Cannabis in South Africa remains debatable, with differing perspectives among lawyers and stakeholders, and the status is described as almost decriminalised rather than fully legalised.
If you find yourself facing a Cannabis-related arrest, ensure you provide identification and a legal address, but beyond that, refrain from making any statements. Resist paying fines or signing documents except for bail purposes, as some police officers may falsely suggest these actions will resolve the case. While you might be released, signing an admission of guilt form will result in a permanent criminal record because you have self-admitted to a crime. Instead, reach out to the 24/7 Arrest Hotline by Fields of Green for All at 063 174 0938.
For those contemplating a business or service involved with Cannabis and feeling uncertain about the legalities involved, it's advisable to seek guidance from Schindlers Attorneys at 011 448 9600. They stand out as leading experts in Cannabis law, offering valuable insights into its applications and limitations in South Africa.