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SA Cannabis Regulations Update

Where we @ with the South African state of nations cannabis regulations...

  • What's potting with the SA law?
    • Cape High Court ruling, 31 March 2017, Gareth Prince, Jeremy Acton, and Jonathan Rubin before the Western Cape High Court, Judge Dennis Davis
      Judge Davis ruled that any law disallowing the use and cultivation of cannabis by an adult in a private dwelling was unconstitutional and therefore invalid, on the grounds that such infringement of the constitutional right to privacy could not be justified. However due to appeals from the state, this decision needed to be confirmed by the Constitutional Court before taking effect. The court also ruled that, in the interim, prosecutions related to the transgression of the laws in question should be stayed. The judge further ordered that “it will be deemed to be a defence that the use, possession, purchase or cultivation of cannabis in a private dwelling is for the personal consumption of the adult accused”. After hearing all appeals in the Constitutional Court during the month of November 2017, the panel announced their decision to reserve judgment in the matter until further notice.

      Constitutional Court ruling, 18 September 2018, Minister of Justice, and Constitutional Development v Prince, before the Constitutional Court, Chief Justice Raymond Zondo
      A decision of the Constitutional Court of South Africa found that it is unconstitutional for the state to criminalize the possession, use or cultivation of cannabis by adults for personal consumption in private. The court gave Parliament 24 months to amend the affected legislation, but also granted interim relief which had the effect of immediately making it legal for adults to use cannabis in private, possess cannabis in private for personal use, and cultivate cannabis in a private place for personal consumption. He placed no limits on quantities that adults would be allowed to carry, consume or grow.
  • What's the latest from the po-po?
    • A SAPS directive signed and dated 23 August 2023 appears to instruct officers to no longer arrest people for personal cultivation and/or possession of cannabis;

      ARRESTS BY THE SOUTH AFRICAN POLICE SERVICE FOR CANNABIS -RELATED MATTERS
      A-H1. Following the 2018 Constitutional Court judgment in the Minister of Justice and Constitutional Development and Others v Prince; National Director of Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others v Acton and Others [2018] ZACC 30, there appears to be confusion as to the

      ARRESTS BY THE SOUTH AFRICAN POLICE SERVICE FOR CANNABIS -RELATED MATTERS

      legal position in relation to cannabis. In short, possession, use and cultivation of cannabis by an adult, for personal consumption, in private, is permitted. In contrast, dealing in cannabis is not permitted therefore commercialisation of cannabis is still not legal in South Africa. Following the order of the Constitutional Court, the definition in section 1 of the Drugs and Trafficking Act, No. 140 of 1992 has been expanded as follows:

      "deal in", in relation to a drug, includes performing any act in connection with the transhipment, importation, cultivation other than the cultivation of cannabis by an adult in a private place for his or her personal consumption in private, collection, manufacture, supply, prescription, administration, sale, transmission or exportation of the drug.

      2. Cannabis is still listed as an undesirable dependence producing substance in Part Ill of Schedule 2 of the Drugs and Drug Trafficking Act. Despite this, licenses or permits are, in certain circumstances, granted by the South African Health Products Regulatory Authority (SAHPRA) and the Department of Agriculture, Land Reform and Rural Development (DALRRD) permitting cannabis cultivation for medical research purposes or the cultivation of hemp (low THC cannabis) for limited purposes.

      3. There is currently no legislation that prescribes what quantities of cannabis may be possessed or cultivated in order to comply with the Prince judgement. There is also no legislation that allows for a presumption of dealing where cannabis quantities above a certain threshold is found in the possession of a person. As a result, the amount of cannabis found in the possession of a person for private consumption, in private or for cultivation cannot be used by a member to presume that the person is in fact dealing in cannabis.

      4. Since there is no definition or quantification of the concept of "personal consumption", the South African Police Services is at risk if they arrest a person for possession, use or cultivation and such matter is not enrolled, struck off the roll, or otherwise does not result in prosecution. This exposes the SAPS to civil claims for unlawful arrest and detention.

      ARREST BY THE SOUTH AFRICAN POLICE SERVICE FOR CANNABIS-RELATED MATTERS

      5. Whenever a member has a suspicion of, or reasonable rounds in relation to an offence involving cannabis, the suspect, like any other suspect, must be treated with dignity and in compliance of the prescripts laid down by the law, including the Bill of Rights in Chapter 2 of the Constitution of the Republic of South Africa, 1996. All lawful means of securing the accused's attendance at trial, such as a summons or written notice, need to be considered before resorting to arrest and detention. For purposes of a summons or written notice, the name, residential address, occupation and status for the accused must be obtained to ensure his or her appearance at an identified court on a specific court date. A criminal case docket must be registered and the cannabis or any other exhibits must be seized and booked into the SAPS 13.

      5.1. Before arresting alleged cannabis offenders and the seizure of their property proceed, members of the SAPS should liaise with the prosecuting authority, where possible, to determine whether the matter will be enrolled and prosecuted. It is also advisable to obtain a search and seizure warrant beforehand, before such operations are conducted. This will ensure that the process is subject to judicial oversight and the rule of law.

      6. No arrests are to be made for personal and private cultivation and/or or possession of cannabis, which activities are not criminal. Furthermore, no arrests of alleged cannabis offenders should be effected merely for the reason to achieve pre-determined targets and without assurance that there is indeed a crime that will be enrolled and prosecuted by the National Prosecuting Authority.
      6.1 A private space is any space that the public does not have access to as a matter of right, for example:

      6.1.1 a physical barrier preventing access is not a requirement of a private space.

      6.1.2 a person does not need to be the owner of a space for it to be their private space.

      6.1.3 cannabis is privately possessed if hidden from view when carried in public. The inside of a motor vehicle is a private space.

      6.1.4 cannabis dispensed by a traditional, cultural, or religious healer in small quantities is privately and personally possessed; and

      6.1.5 more than one person may have ownership rights to personal and private cannabis.

      7. This circular must be brought to the attention of all members under your command against their signature and filed as proof that such members familiarised themselves with the content of this circular. Any enquiries in relation to this circular should be directed to

      ARRESTS BY THE SOUTH AFRICAN POLICE SERVICE FOR CANNABIS -RELATED MATTERS

      Brigadier NF van Graan, at: 082 779 8662 or Brigadier MD Bobie, at: 079 527 3846 of the Division: Legal Services. Alternatively, any member of Legal Services responsible for provincial operational legal assistance may be contacted in this regard.

      8. Failure of a member to comply with these instructions may result in disciplinary steps.

      1-J.1. For your information.

  • Its been a while but there’s a reason to SMILE!
    • Private Cannabis Bill *29th February

      The bill has made it through the various levels of politicking and debate and has landed on
      Uncle Cyril’s table for signing. So any day now we will hear if and when the Bill will become law.
      So what does the bill say? Here’s my take away:

      THE GOOD! YES!
      • The new Cannabis Definition seems to allow trading in seeds, clones and seedlings
      • Growing at home and in private, no plant limits
      • Partake in a private space, no limits

      THE BAD! NO!
      • Trading in flower, concentrates, edibles, or any products derived from flower.
      • Driving under the influence of THC

      THE UGLY!
      • Private Members Clubs could eIectively become illegal, depending on the Minister’s
      further regulations and the Police interpretation.

      We asked OhHighMarc420 to drop the terpenese and give us some legalese and this is
      what we got:

      The Bill has undergone several changes, with the most recent being stripped of most of the
      highly debated issues, including plant limits/counting and the traditional and cultural
      exemptions.

      1. Cannabis has an updated definition:
      ‘‘cannabis’’ means the flowering or fruiting tops of a cannabis plant and includes
      products made therefrom, but excludes any seed, seedling, the stalk, leaves and
      branches without any fruit or flower, and the roots of a cannabis plant, including
      products made therefrom.

      2. “Private Place” has also now been defined:
      ‘‘private place’’ means-
      (a) any place, including a building, house, room, shed, hut, tent, mobile home, caravan,
      boat or land or any portion thereof, to which the public does not have access as of right;
      and
      (b) any part or portion of communal land as defined in section 1 of the Communal Land
      Rights Act, 2004 (Act No. 11 of 2004), which, in terms of the rules or custom of a
      community or the standard rules contemplated in section 19(5) of that Act, is a place
      which is exclusively used to cultivate or use cannabis in a private place, by an adult
      person as a member of such a community;

      3. No plant limits have been included and there are currently no limits on the amount of
      cannabis that is considered personal use. However, in Paragraph 6, a provision is made
      for the Minister to create regulations around this. Such regulations will need to be
      approved by parliament.

      4. Lastly, this bill amends certain other existing laws when it comes into operation. I have
      one concern;

      The amendments to the National Road Traffic Act, 93 of 1996, references to THC have
      been added, and the eIect of these additions is that anyone who is in the driver seat of a
      vehicle who has THC in their blood is now guilty of an oIense which could result in 2
      years of prison.

      This is a big problem because THC remains present in my your blood long after
      consumption. This amendment eIectively make it illegal to drive for 2 months after a
      sesh with no consideration for actual impairment or existing science relating to
      cannabis intoxication and impairment.

      The bill needs to be signed, and published in the gazette to be made law. Until then we operate
      on the basis set out in the Prince case (Minister of Justice and Constitutional Development and
      Others v Prince (Clarke and Others Intervening); National Director of Public Prosecutions and
      Others v Rubin; National Director of Public Prosecutions and Others v Acton (CCT108/17) [2018]
      ZACC 30; 2018 (10) BCLR 1220 (CC); 2018 (6) SA 393 (CC); 2019 (1) SACR 14 (CC) (18
      September 2018) (saflii.org)) and the Police Directive (Arrests-by-the-South-African-PoliceService-for-Cannabis-Related-Matters23082023.pdf (fieldsofgreenforall.org.za)).

      These are the only laws that have been passed. Do not allow yourself to be fooled by social
      media or misleading headlines.

      Where we at:
      Drafted
      Tabled
      Debated
      Passed by national assembly
      Passed by council of provinces
      Referred by NA to president for signature
      Signature and gazette
      Date for commencement of new bill
  • Cyril has found his pen, but we're still in the dark.
    • Fields of Green for all have tried to shed some light:
      https://fieldsofgreenforall.org.za/the-correct-version-of-the-cannabis-for-private-purposes-bill-now-signed/