In September 2018, the Constitutional Court ruled that it is not a criminal offence for an adult citizen to use, possess or grow cannabis in private for personal consumption.
The court gave parliament 24 months from the date of the judgment to bring the ruling in line with South African laws, with a new bill expected to be released soon, said Julie Oppenheim, a partner at law firm Bowmans.
Below, Oppenheim outlined the current position of cannabis in South African law, ahead of the introduction of the new regulations.
The line between private and public use
One of the few facts we know for sure about cannabis regulation right now is that using or growing it in private for your personal use is your own business, said Oppenheim.
“Every citizen has the right to privacy and this right informed the Constitutional Court’s decision in the famous cannabis case of September 2018,” she said.
However, the legal expert said that the Constitutional Court did not define the scope of private, rather leaving this to the discretion of those who enforce the law – the police, prosecutors and the courts.
The judgment did, however, expand private use, possession or cultivation of cannabis beyond a home or private dwelling, she said.
“This makes sense as the sphere of privacy naturally extends to one’s person, one’s car, one’s handbag, for example, and searching any of these would be an infringement on the right to privacy.
“This is why the state is required to have reasonable grounds for doing so.”
It also seems (although not explicit from the Constitutional Court’s judgment) that in addition to the use of cannabis beyond one’s home, it may be permissible to use cannabis together with friends and family – provided that they are consenting and over the age of 18, said Oppenheim.
However, this would not extend to spaces used by other groups or the broader community, such as a park or the street, she said.
How much is too much?
The Constitutional Court did not prescribe the quantity of cannabis that would qualify for personal use.
Instead, it gave parliament 24 months from the date of the judgment to incorporate appropriate provisions into the relevant legislation, said Oppenheim.
Until these provisions are made, South Africa’s law enforcement officials have the discretion to decide whether the amount of cannabis in a person’s possession could reasonably be believed to be more than what is necessary for private use.
“If so, the individual could be considered to be ‘dealing’ in cannabis in contravention of the Drugs and Drug Trafficking Act.”
To assist the police in the exercise of their discretion, the National Commissioner of the South African Police Service (SAPS) has already issued a directive which sets out certain considerations where someone is found in possession of cannabis.
According to the directive, the SAPS official must observe the circumstances and surrounding facts, and question the person implicated, as well as any other person who may be able to assist.
If the explanation given is unsatisfactory, the police officer has the discretion to decide what action to take.
If in doubt as to whether the cannabis is for personal consumption, the police officer must register a criminal case docket and seize, weigh and book the cannabis. The decision on whether or not to prosecute will then lie with the prosecutor.
On the other hand, if the official is satisfied that the quantity of cannabis is small enough to qualify as personal consumption, he or she should not arrest and charge the person but record the amount of cannabis and the reasons for the decision in his or her pocket book or diary.
In all cases, police discretion must be exercised in ‘good faith, rationally and not arbitrarily’.
“While it is comforting that the directive gives some guidance and provides some checks and balances, being charged with a crime carries a huge reputational and pecuniary cost,” said Oppenheim.
“The wide room for discretion – by SAPS, the prosecutor and even the courts – leaves this an uncomfortable space to dabble in.”
Health supplements exempted – for 12 months
Cannabis products considered to be health supplements are those containing a daily dose of less than 20mg cannabidiol (CBD), as well as those containing less than 0.001% of THC, or less than 0.0075% CBD.
These products may be bought and sold relatively freely as a result of the exemption published in the Government Gazette on 23 May 2019 – a development that has perhaps fuelled the false impression among many South Africans that the cannabis market is suddenly opening up to any and all products, said Oppenheim.
“However, even this exemption carries limitations,” she said.
“It applies only for 12 months and is intended to create an opportunity for the fledgling cannabis industry to engage on a legal framework going forward.
“In the meantime, does this mean that large amounts of cannabis can be freely cultivated in order to manufacture these products?
“Probably not. Remember that the provisions on dealing under the criminal law remain applicable, unless you have a cultivation licence from SAHPRA.”
Playing it safe
Until some of the many grey areas in the regulation of cannabis have been clarified, Oppenheim outlined the basic legal position on cannabis in South Africa as follows:
- You may use it for your personal recreational or medicinal use, alone or with friends and family over the age of 18, in spaces not open to groups other than your own.
- Grow only as much as necessary for your personal use; where unsure, rather be conservative.
- Other than in the case of specific health supplements and processed hemp fibre detailed above, buying and selling cannabis or any cannabis-containing product is currently not legally permissible.
What happens next?
Despite the regulatory changes to cannabis products, Government has been quiet on its plans to introduce laws around recreational cannabis use.
The September 2018 Constitutional Court judgement effectively gave lawmakers 24 months to bring legislation in line with the ruling – with nine months having already passed.
Given the somewhat controversial nature of cannabis, the new laws will have to be airtight and able to withstand a full public commentary process.
“We understand that a bill regulating cannabis is soon to be published for public comment, although this has not been officially confirmed and we have not seen any such draft,” said Oppenheim.