Growing, possessing and consumption has been ruled as a non-criminal offence for private use by the Constitutional Court in South Africa. The parliament has been given 24 months from September 2018 to compose rules and regulations in line with the laws of the country. This means that private consumption will not be prosecuted but the rules and regulations for its legal status are still in the workshop. The ruling by the constitutional court was informed by the citizens right to privacy. The legal age for consumption will be 18 years of age, in line with the legal age for tobacco and alcohol consumption.
Julie Oppenheim is a partner at the law firm of Bowmans. She explained that, although private use and growing will not be prosecuted, the range of privacy has been left to law enforcement. The ruling did, however, extend the range of privacy beyond that a home as ones’ privacy to cars, bags and other places that would be deemed as an infringement to search on grounds of right to policy.
The quantity of cannabis that South Africans are allowed has not been determined but will be included in the legislation expected by September 2020. Until then, law enforcement will use their discretion to decide if the individuals’ quantity is reasonable for private consumption. If law enforcement deems the quantity of cannabis in possession of an individual too much for private consumption, it will be seen as an intent to sell and they will be prosecuted according to the Drugs and Drug Trafficking Act. The National Commissioner of South African Police Services has set out a directive to assist law enforcement in using their discretion to ensure uniformity.
This directive states that law enforcement officers must observe and analyze the circumstances and surrounding facts. An individual with a full 5L jar of cannabis at home could just be curing the bud from their growth, whereas the individual with many bags of cannabis at a festival could be intending to sell. Despite the directive, there is a big grey area that individuals can operate within due to the wide room in discretion. Due to this grey area, the cannabis industry is already growing rapidly, however, no one may sell marijuana unless they have a cultivation license from the South African Health Products Regulatory Authority (SAHPRA).
Many South Africans, and Millennials alike, have the false impression that the cannabis market is open for any and all products. This is due to the exemption publish in the Government Gazette in May 2019 for the selling and buying of cannabis health supplements. However, this exemption is only for 12 months and the products may only contain less than 20mg cannabidiol (CBD) with less than 0.001% of tetrahydrocannabinol (THC). This exemption is intended to get the cannabis industry to engage in a legal framework, especially for the future.
There is also no indication of what the implications would be in the workplace from the legalization of cannabis consumption for private use. If an individual took a toke at home before work, they would still be under the influence at work. How are workplace authorities expected to deal with this? Would it be dealt with based on their performance at work? Or will there be a zero tolerance in the workplace, just as alcohol is. THC stays in our bodies for a very long time and does not accurately represent if someone is ‘high’ or not. South Africa also does not have easy access to devices measuring the levels of cannabis, like that of a breathalyzer for alcohol.
As for what is to happen next, the South African Government has been quiet, not expressing any plans around the ruling from the Constitutional Court. The laws regarding cannabis need to be able to withstand the public commentary process, however, there hasn’t been any evidence of a draft. Despite the radio silence, the bill regulating cannabis consumption should be released for public commentary soon.
In my opinion, Cannabis is a cultivator of community and in such a diverse nation, it could bring the nation together. The government needs to get into gear and start communicating their intentions with the public. The Dagga Couple is a pro-cannabis lobbyist organization founded by Julian Stobbs and Myrtle Clarke. They have been on the forefront of legalization of marijuana and are gunning to get cannabis legalized commercially. I think the government should take advantage of the huge cannabis community in South Africa and legalize it commercially. It could serve as a massive income generator if the government decided to take advantage of it. Either way, the purchase of cannabis cannot be stopped.
