In 2018, the Constitutional Court (ConCourt) legalized the use of cannabis for both personal and medical use. The ConCourt ruled that the criminalisation of cultivation and personal use of cannabis by adults. As specified in the Drugs Act of 1992 and the Medicines Act of 1965, was unconstitutional. This ruling means that it is no longer a criminal offense for people to grow, use or be in possession of cannabis in their private homes. However, there are quantifiable limitations to this.
This ruling made a lot of cannabis users happy. However, four years later there is still a lot of confusion about what is legal and what is not.
Cannabis legal practices in South Africa
The Department of Health supported the introduction of the Cannabis for Private Purposes Bill that was passed in September 2018. But it warned that many public health and safety issues need to be addressed in the coming years.
In a parliamentary meeting on 24 August 2021, the Department of Health echoed the views of cannabis activists. These have always stated that it is a waste of state resources to arrest citizens for cannabis. Also it is an infringement of one’s right to privacy to prohibit them from using cannabis in their private homes.
Under the Cannabis for Private Purposes Bill, there’s a permisson for adults to grow and smoke cannabis privately. They can also exchange it with other adults – without the exchange of money. These however, should not exceed a certain quantity. Hence the ruling was inline with the constitutional right to privacy.
Although this bill satisfies users’ privacy rights, there is growing concern that the bill does not fully protect adult non-cannabis users and minors. As a result, there have been several calls by government leaders, cannabis users, and non-users to revise the bill.
Cannabis laws – illegal practices in South Africa
Although the use of cannabis for personal or medical use is legal, selling and distribution of it are not. The bill allows for a person living alone to be in possession of a maximum of 600g or 1.2kg for a household with two adults. It is important to remember that public consumption is illegal, however, the maximum public possession amount is 100g.
The 2018 ConCourt ruling states that:
- An adult person may consume or be in possession of cannabis in private, for his or her personal consumption
- There is no permission of the use, including smoking, of cannabis in public or in the presence of children or in the presence of non-consenting adult persons
- It is illegal to use or possess cannabis in private other than by an adult for his or her personal consumption
- The cultivation of cannabis by an adult in a private place for his or her personal consumption in private is no longer a criminal offense
The selling of cannabis is only permitted if the cannabis is being cultivated under an official license from the South African Health Products Regulatory Authority (SAHPRA) for the purpose of medical research. The process to apply for a license to cultivate cannabis for medical purposes is extremely rigorous. If your application to cultivate is accepted, the license will be valid for five years, after which the license needs to be renewed.
Understanding why cannabis was nolonger illegal
For over a decade, resources have been spent researching the medicinal properties of cannabis. Before 2016, SAHPRA (previously known as the Medicine Control Council (MCC)) classified cannabis as a schedule 7 substance and it was deemed illegal to use, grow, be in possession of or distribute cannabis.
After intense public debate and scrutiny on drug laws, particularly in the context of medical use, the Medical Research Council started an in-depth review of scientific studies on cannabis. The Council found evidence that strongly suggested that cannabis can be extremely effective in treating chronic pain and psychological disorders, and recommended cannabis be reclassified.
When SAHPRA took over the MCC, there was a distinction between CBD and THC. The primary difference between the two being CBD is not psychoactive while THC is. This distinction allowed the reclassification of cannabis. With CBD being listed as a Schedule 4 or Schedule 0 substance depending on the dosage. And THC as a Schedule 6 or a Schedule 0 substance under specific conditions.
2021, the Department of Health voiced their concerns regarding the bill. This was more on the safety of adult non-cannabis users, children, and minors, especially in public spaces. The health department stated that “The bill does address the need to protect children, defined as persons under the age of 18, but does not refer specifically to adolescents and does not go far enough in protecting adolescents from access and exposure to cannabis.”
The Department of Health went on to say that the bill needs to be explicit on the consequences of:
- giving or selling cannabis to persons under the age of 18
- failing to protect a minor from accessing cannabis
- Driving under the influence of cannabis
- Smoking near a child and non-consenting adults
The department recommended that people who violeted these acts should be charged with a Class A offense which is viewed as a minor offense or infringement.
Pros and cons of new cannabis laws
Pros
- No longer illegal to use cannabis for medicinal or personal use
- No longer illegal to be in possession of cannabis
- You have the right to grow cannabis in the privacy of your own home
- You have the right to distribute cannabis to other adults. (But only there is no compensation and it is within the legal personal possession limit)
Cons
- The Cannabis for Private Purpose Bill is still being written and revised so the legality of certain issues is still unclear
- The bill does not stipulate a safe distance of consumption away from non-users
- Unregulated use of cannabis could potentially increase the national road accident rate
- There has to be more resourses to train traffic officers to identify and detain drivers under the influence of cannabis
Click here to read through the full Cannabis for Private Purposes Bill.
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