A LEGAL PERSPECTIVE OF CANNABIS IN SOUTH AFRICA

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Much has been written about the lawfulness of Cannabis in South Africa since the Constitutional Court delivered its comprehensive; and undauntedly seminal, judgment, on 18 September 2018 – in 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) (the “Cannabis Judgment”).

Yet, and despite a seemingly unanimous view amongst the legal league as to the impact of the Cannabis Judgment on the myriad laws regulating cannabis in South Africa – the media coverage and testimonies, from the broader cannabis community in her essence; certainly reflect, at the very least; that a great deal of confusion exists amongst the cannabis people of South Africa right now; indeed our friends are being arrested as we read this; which means that the work is not yet done, by any means at all. This opinion piece thus aims to guide the cannabis community in understanding what is currently permissible considering the Cannabis Judgment. Put differently, what exactly is lawful, and what is not? What too, is just smoke and mirrors?

To understand what is lawful and what isn’t, one must first grasp the legal effect of the Cannabis Judgment on the existing legislative framework. In other words, how did the Cannabis Judgment change the law as it applies currently?

The answer to this question is that certain sections of the Drugs and Drug Trafficking Act, 140 of 1992, (“Drugs Act”) and the Medicines and Related Substances Control Act, 101 of 1965, were declared to be inconsistent with the Right to Privacy embodied in the Constitution; and therefore, and during the interim period until Parliament remedy this defect, these sections need to be read differently insofar as they pertain to cannabis and its use, possession, and cultivation, by an adult person.

All that this means is that it is no longer a criminal offence for an adult to use or possess cannabis in private or to cultivate cannabis in a private place for his or her own personal consumption in private. It means nothing more, and nothing less – there are no ‘grey areas’ so to speak and legal certainty (should) exist in the minds of those charged with interpreting and enforcing the amended law. We say should, because testimonies from the cannabis community indicate that the State is still pursuing persons who use or cultivate cannabis in compliance with the Cannabis Judgment. Those persons would likely have a damages claim against the State and should take legal advice to the extent necessary.

Importantly, and something other ‘writers’ seem to have overlooked, is that the Cannabis Judgment did not materially amend or otherwise affect the various sections of the Drugs Act which apply to the ‘exchange’ of cannabis amongst adults whether for consideration (money) or not, and by implication, to cannabis products and arguably also to cultivation and extraction equipment. To this end, certain definitions contained in the Drugs Act find application and must be understood by members of the cannabis community who intend pursuing a business in the cannabis industry. These definitions relate to “deal in” (as amended by the Cannabis Judgment), “manufacture” and “sell”. For present purposes it is necessary to quote these definitions verbatim and the reader should note that cannabis is still deemed to be a drug and thus a prohibited substance – it is only its personal use, possession and cultivation that is no longer criminal – although the plant itself still remains a criminal.

Thus “deal in”, in relation to a drug, includes performing any act in connection with the transshipment, 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. Whereas “manufacture”, in relation to a substance, includes the preparing, extraction or producing of the substance. On the other hand, “sell”, in relation to a drug, includes to offer, advertise, possess or expose the drug for sale, to dispose of it, whether for consideration or otherwise, or to exchange it. As the reader will notice, the definition of ‘deal in’ is broad in that it “…includes performing any act in connection with…”. This wide-ranging definition is what is likely to trip up many people trying to achieve some gain in the cannabis space at present, since within this definition the other two mentioned definitions are also included. In other words, preparing, extracting or producing a substance (read cannabis products and derivatives such as oil, dab/shatter, balms, teas, etc.) constitutes its manufacture, which equals ‘dealing’. Offering, advertising, disposing for gain or not, or exchanging cannabis shall mean one is ‘selling’ which then also equates to ‘dealing’.

For the avoidance of any doubt then, any business currently distributing cannabis to the public, whether it contains THC or CBD (unless such product falls within the legal exemption of certain CBD products permitting a maximum daily dose of 20mg) or both, is doing so unlawfully and its operators are committing a series of crimes. The proviso being that a medical professional (such as a doctor or pharmacist) may prescribe and supply cannabis under certain circumstances. In addition, certain companies have been awarded licences to cultivate cannabis commercially for medical purposes only, which licences are awarded through the Department of Health pursuant to the submission of an application to the South African Health Products Regulatory Authority (“SAHPRA”). That is where the buck stops though; with the rest of the purportedly lawful trade in cannabis being mere smoke and mirrors. Members of the cannabis community are thus advised to adopt a cautious approach when purchasing cannabis from those advertising it openly or from entering into any business relationship with certain operators, say, to ‘grow weed for them’. Remember that ignorance of the law excuses no man, or woman, for that matter.

So, whilst there are no ‘grey areas’ there does exist a fair number of green ones – the private places. In our minds, this is the aspect of the Cannabis Judgment which should be celebrated by the cannabis community and where those looking to enter the cannabis industry should, for now, focus their collective efforts. We believe that on a sound reading of the Cannabis Judgment one is able to conclude that the learned judges of the Constitutional Court appreciated the intrinsic bond which exists between the human and his or her cannabis plant. Firstly, the Cannabis Judgment deviated materially in how the judges viewed, and ruled, on the important concern of privacy, and is thus a radical departure from how Judge Davis viewed the case when it was first ruled on in the High Court sitting in Cape Town. In effect, the Cannabis Judgment expanded the jurisprudential understanding of the Right to Privacy to mean something more than a narrowly construed and objectively determined ‘in your own home’ type scenario. But now, privacy has a subjective element to it, and rightly so, which extends outside of the borders of the home. This distinction is important because if one appreciates it, then the Cannabis Judgment might be better understood, and members of the cannabis community might realise that commercial opportunities outside the actual trade of cannabis do exist. The “…in the presence of consenting adults…” qualification articulated in the Cannabis Judgment supports this view. Hence, the use of cannabis by a small, or large, number of adults in a place or space where such adults all consent to such cannabis use is perfectly lawful. Written differently, the use of cannabis by a group of adults in a place which is ordinarily deemed to be public but for the now unanimous consent of the partaking adults – is deemed to be legal. Think social clubs, events, and restaurants with private cannabis use areas. So long as cannabis is not being ‘sold’ (refer to definition above), its use by adults who all consent to such use is lawful.

Whilst the status of cannabis in South Africa causes some discomfort amongst members of the general populace, the shifting attitudes towards this plant are encouraging to see since the plant itself offers South Africa a very real economic opportunity. For this reason, members of the cannabis community are encouraged to leave the past where it belongs and to rather raise their voices and fists in solidarity in demanding an all-inclusive cannabis economy as opposed to only a capital-intensive industry.

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