Cannabis Law in South Africa

“The history of Marijuana is big, complicated and we will barely be able to scratch the surface”.[1] A big historical anomaly is how much anti – cannabis activists forgot how much legal it once was. Marijuana, which is also known as ‘cannabis’, was once one of the largest agricultural crops in the world, since Marijuana can also be utilized as hemp.  Hemp just happens to be the most robust, durable, natural and soft fibre on earth. Not only that, it has a lot of uses which include, but is not limited to products, fabrics, fibres, medicines and even biofuel.

?On the 18th of September 2018, Judge Zondo ACJ (by unanimous) stunned South Africans by giving Judgment; that certain sections of the Drugs and Drug Trafficking Act and the Medicines and Related Substances Control Act are inconsistent with section 14 of the Constitution, which is a person’s “right to privacy.” [2] It is only to the extent that it criminalizes the use, possession or cultivation of cannabis by an adult for their personal consumption in private, but still received tremendous attention from the media. Given the fact that this is a landmark case for pro – marijuana activists, what does the future hold for the commercial and private sector?

?Medically speaking, there is an increasing amount of studies revealing many potential benefits and has Social media become one of the main platforms, where recordings of medicinal treatments are viewed and shared by people all over the world. 
 
The United States of America has been in the middle of many legal battles between those who seek to legalize the use of Marijuana and those who seek to oppose it.   

So what was the legal position prior to the Judgment, and how legal is Marijuana now?

 

Position prior to the Judgment

Marijuana has many different names across the globe but is commonly known in South Africa as “Dagga”. The Legalisation/Decriminalisation of dagga has constantly been opposed by authorities in South Africa, irrespective of the Global support in favour thereof. This however, did not keep the market from flourishing. Considering inflation and the recent increase in demand we can only envision the potential economic growth surrounding this industry.  So how does such a clearly lucrative export survive, while being suppressed by almost every branch of Government? Simply put, South Africa already made a name for itself. The reputation of the Kwazulu-Natal’s “Durban Poison” and some strains in the Eastern Cape are well-known for their quality and potency. 

Well – funded growers aside, the local demand is also no secret to the community.  The unfortunate economic status and high unemployment rate of South Africa, contributes to the illegal selling of Marijuana.   For many this is their only source of income and they would rather face prosecution than starvation, which is sadly, often the case. Our managing partner, Stefan JF Bezuidenhout, frequently appears in the South African criminal courts and can personally testify of the desperation to generate income and how the “dealer” trade has become a quick way for an easy buck.

?The harsh reality is that “95% of the ‘small time’ marijuana dealers are jailed and often leave prison as hardened criminals”, snowballing the struggle for employment.[4]. This while dozens of licences have been issued to multi-million rand facilities now exporting and making sizable profits.

 

After the Judgment

The Judgment mentioned supra opened the door for the marijuana industry,

as the court declared sections 4b and 5c of the Criminal Prohibition of Dagga Act, read with certain sections of Part III of Schedule 2 of the Drugs and Drug Trafficking Act, unconstitutional.

It is no longer a crime to cultivate and/or use Marijuana in a private capacity. However, the judgement clearly stated that only possession, use and cultivation for private use are allowed and thus ruling out commercial growth, or does it? In line with the recent judgment it is clear that the government should make it easier for researchers to conduct studies on the medicinal use of Marijuana (including synthetic cannabinoids), and funding should be made available to support this research, especially where it could lead to medical innovation.[10] The commercial development is currently also underway, even if somewhat hindered, as some infrastructures are already in place such as the South African Cannabis Master Plan, which got introduced on 25 August 2021.  In March 2017 the South African Medicines Control Council (MCC) published draft guidelines for cultivation and processing of cannabis for medical use. The 32 – page document contains the exact guidelines that the medical and agricultural industry will have to follow. Since its publication in 2017 more than 50 licensed facilities now appear on the SAHPRA website as being licensed cannabis cultivators.

?In October 2021, the Department of Agriculture, Forestry and Fisheries launched their Hemp Application Permit guidelines and can commercial hemp bearing less than 0.2% THC be cultivated/propagated on open agricultural land. The costs associated with this Application are considerably less and much less strict in comparison to the Medicinal Cannabis Cultivation Application.

Social Clubs have now also started taking the leap in hopes of finding more affordable ways of entering the commercial cannabis market, even though they are slightly more risky. However, these clubs are in no way guaranteed protection from prosecution on the basis of, what could evidently be, a misunderstanding/interpretation as to what the present state of law is. 

The concept of a ‘club’, or company, in which members plant their own cannabis, on rented space, with the intention of purchasing the services of a gardener/grower in respect of the growing of their cannabis, is probably the closest to which a grow operation can come to operating within the law (assuming that it is not fully within the law).

SJF Attorneys however advise you obtain the assistance of a specialist when creating a club since its modus operandi has to be followed precisely to remain within the boundaries set out by the Judgment.

 

Conclusion

Commercial development aside, it is clear the average citizen was benefitted the most with the recent judgment. People of South Africa can now cultivate and use cannabis in the private of their own homes without fear of committing a crime and facing prosecution. 

Readers are advised that while a draft Bill for cannabis, known as the “Cannabis for Private Purposes Bill”, has been released to the public, it is in no way law yet unless passed by parliament. An event that has not yet realised due to public outcry regarding the fundamental flaws contained in the Draft Bill.

?There is still a lot of uncertainty regarding quantity and what classifies as “private”, but one thing is for certain, the legend of ‘4:20’ has arrived in SA, and it’s here to stay.

SJF Attorneys avail to remain available to assist clients through the various alternative processes/applications as required.