Cannabis use in South Africa: Government clears up confusion over buying, selling and social clubs
Government has responded to numerous questions surrounding the Cannabis for Private Purposes Bill, which was passed by the National Assembly in November 2023, and now sits in the National Council of Provinces.
The bill was introduced in 2020 by the Department of Justice and Correctional Services, and establishes a new legal framework for adult private use of cannabis and addresses issues related to children and cannabis in accordance with the judgments from the Constitutional Court in 2018 and 2022.
It then underwent a public comment period from 30 November 2023 to 19 January 2024, resulting in numerous responses from stakeholders in various sectors, including advocacy groups, businesses, government entities, and civil society organisations seeking clarity the status quo of cannabis use in South Africa.
Uncertainty surrounded core themes, which were responded to by the Department of Justice and Correctional Services. In summary, the department clarified the following:
- Cannabis is only legal for private use;
- Cannabis cannot be bought or sold – this is still illegal;
- Cannabis can be acquired from someone else – but not by paying them for it;
- Private and social cannabis clubs have not been made legal;
- Using cannabis around children or giving it to children is illegal – however, they can assist their parents to cultivate it;
- Using cannabis in public or around non-consenting adults is still illegal.
The department admitted that many aspects of the regulations in process are still unclear, including the quantities involved and many definitions (ie, what constitutes a “private space”) – but these will be clarified in regulations and the minister(s) in charge.
The more detailed explanations are below:
Is cannabis legal?
For personal use, yes – amendments to the bill have not made cannabis illegal again.
The Constitutional Court in the Prince judgment legalised the use, possession and private cultivation of cannabis in respect of adults only. “The bill aims to give effect to this,” said the department. “The Bill merely legalises cannabis to give effect to the adult’s right to privacy.”
Additionally, the health ministry recently proposed amendments to the Medicines and Related Substances Act to align with this bill, which, if passed into law, would allow for cannabis plant material and products containing THC to be used for private consumer purposes without being regulated as a Schedule 6 substance.
However, the bill does have penalties for contraventions of the provisions, in terms of possession, cultivation, smoking and consumption, as well as involvement of a child.
Penalties are in the form of fines or imprisonment in cases of serious contravention.
“For instance, smoking in public, or in the presence of children or non-consenting adults is conduct that must surely be restricted,” said the department.
Can cannabis be sold?
Buying and selling cannabis is still strictly prohibited by the Bill.
Studies have shown that South Africa can benefit from the cultivation and export of cannabis, with the medicinal applications alone having the ability to contribute R100 billion a year to the economy, creating over 100,000 jobs.
President Cyril Ramaphosa pledged at both the 2022 and 2023 State of the Nation Addresses to create a fully-fledged cannabis industry.
However, many bills by departments conflict – leaving some people finding themselves on the wrong side of the law.
The Cannabis Master Plan that was developed by the Department of Agriculture, Land Reform and Rural Development is geared towards the commercialisation of cannabis in its entirety, however legislation has not materliased.
“Public comments will also be invited on the draft regulations in due course,” said the department.
The responses also noted that the possibility of commercialising cannabis in its entirety could be legislated similarly to that of alcohol. “The contemplated national legislation to commercialise cannabis in its entirety may be crafted along the lines of the legislation that regulates alcohol.”
How to access the plant?
Cannabis can be cultivated in private spaces for use and possession. As it stands to date, it cannot be sold.
A pertinent question in the public comments arose when a member of the public asked what happens when people do not have the space to cultivate cannabis on their own.
The department responded by saying that people could get the plant “by obtaining [cannabis] from others but without paying for it.”
“Those who don’t have a place to cultivate will have to rely on obtaining cannabis from others; the Bill cannot come to the rescue of those who have no place to cultivate, by permitting the sale of cannabis, which was declined by the [Constitutional Court],” said the department
How could I be arrested?
The police are allowed to arrest in certain instances where there is contravention of the law, such as in selling cannabis.
If small quantities are possessed for smoking, there would be no contravention of the law in terms of the Prince judgment, and the charges “may not be proceeded with.”
“The Police may not arrest anyone for use, possession or cultivation of cannabis that is sufficient for personal consumption,” said the department. However, responses indicated otherwise, with some alleging harassment from police in attempts of “receiving bribes.”
Altair Richards, an executive at ENS’ Corporate Commercial Practice says amendments to the Drugs and Drug Trafficking Control Act and relevant schedules still need to be made to ensure that cannabis use is above board and lawful.
Currently, the Drugs and Drug Trafficking Control Act stipulates that “No person shall use or have in his possession—…(b) any dangerous dependence-producing substance or any undesirable dependence-producing substance…”. Current scheduling specifies that “Undesirable Dependence-Producing Substances”, include “cannabis (dagga).“
What about private social clubs?
These are still prohibited.
The department said that the recognition of cannabis social clubs and the trade in cannabis are matters for regulation in the contemplated national legislation.
“The Bill does not aim to legalize the establishment of cannabis social clubs. The proposed amendment could lead to unintended consequences of enabling the use or establishment of cannabis social clubs.”
Can children use it?
No one under the age of 18 is allowed to use or possess cannabis.
“The Bill does not mean that children are given the right to use cannabis. Adults should exercise control over children, to ensure that cannabis is inaccessible to them unsupervised.”
They are, however, allowed to assist their parents in the private cultivation of cannabis.
“Children are allowed to assist their parents in the cultivation of cannabis – but not to use cannabis,” the department said.
What does the department say the bill does not have clarity on?
The Bill does not provide for quantities for cultivation, possession, and transportation.
This was addmitted by the department, saying that “these are for determination by the Minister in the regulations.”
The predicted national legislation will regulate the possession and cultivation of large quantities for personal needs.
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