As the topic of Cannabis (AKA Dagga or Marijuana) Growing becomes increasingly popular in South Africa – Even more so, after the Con-Court’s Ruling last year (18 September 2018), to decriminalize the private use and cultivation of the Cannabis Plant.
So, you’ve decided to try your hand at Growing Cannabis at Home; but perhaps you just need to look into things a little deeper before setting off on your own Grow Journey?
This article quickly discusses the current legal status around the plant within South Africa, providing you with everything you need before heading onto your own Home Grow project.
The Legal Status in South Africa
In 2017, the Western Cape High Court moved to legalize cannabis, but that had been appealed against by the State. It was to be relooked at 1 Year thereafter.
1 Year later, the matter had been revisited – And on 18 September 2018, the Constitutional Court had ruled for the Decriminalization of Cannabis for Private Adult Use at Home. This covers Cultivation, Possession and Personal Consumption.
Parliament was then given 24 Months to write this Bill into Law, aligning the legislation with the ruling. However, until that has actually been written into Law, there are no clearly prescribed details pertaining to legal quantity allowances of Personal Cultivation, Possession and / or Consumption.
Private Use versus Public Use
Below, Julie Oppenheim, a partner at Bowmans Law Firm, outlined the current position of cannabis in South African law.
“One of the few facts we know for sure about cannabis regulation right now is that using or growing it in private for your personal use is your own business”, said Oppenheim.
“Every citizen has the right to privacy and this right informed the Constitutional Court’s decision in the famous cannabis case of September 2018,” she said.
However, the legal expert said that the Constitutional Court did not define the scope of private, rather leaving this to the discretion of those who enforce the law – the police, prosecutors and the courts.
The judgment did, however, expand private use, possession or cultivation of cannabis beyond a home or private dwelling, she said.
“This makes sense as the sphere of privacy naturally extends to one’s person, one’s car, one’s handbag, for example, and searching any of these would be an infringement on the right to privacy.
It also seems (although not explicit from the Constitutional Court’s judgment) that in addition to the use of cannabis beyond one’s home, it may be permissible to use cannabis together with friends and family – provided that they are consenting and over the age of 18, said Oppenheim.
However, this would not extend to spaces used by other groups or the broader community, such as a park or the street, she said.
Quantities and Law Enforcement
Until these provisions are made, South Africa’s law enforcement officials have the discretion to decide whether the amount of cannabis in a person’s possession could reasonably be believed to be more than what is necessary for private use.
To assist the police in the exercise of their discretion, the National Commissioner of the South African Police Service (SAPS) has already issued a directive which sets out certain considerations where someone is found in possession of cannabis.
According to the directive, the SAPS official must observe the circumstances and surrounding facts, and question the person implicated, as well as any other person who may be able to assist.
If the explanation given is unsatisfactory, the police officer has the discretion to decide what action to take.
If in doubt as to whether the cannabis is for personal consumption, the police officer must register a criminal case docket and seize, weigh and book the cannabis. The decision on whether or not to prosecute will then lie with the prosecutor.
On the other hand, if the official is satisfied that the quantity of cannabis is small enough to qualify as personal consumption, he or she should not arrest and charge the person but record the amount of cannabis and the reasons for the decision in his or her pocket book or diary.
In all cases, police discretion must be exercised in ‘good faith, rationally and not arbitrarily’.
“While it is comforting that the directive gives some guidance and provides some checks and balances, being charged with a crime carries a huge reputational and pecuniary cost,” said Oppenheim.
While there is alot of grey area around this matter, regarding quantities and locations, etc. – Here are some points to keep in mind so that you do not play too close to the fire.
Oppenheim outlined the basic legal position on cannabis in South Africa as follows:
- You may use it for your personal recreational or medicinal use, alone or with friends and family over the age of 18, in spaces not open to groups other than your own.
- Grow only as much as necessary for your personal use; where unsure, rather be conservative.
- Other than in the case of the Hemp / CBD Health Supplements exemption (As explained below). Buying and selling cannabis or any cannabis-containing product is currently not legally permissible.
Cannabis CBD Health Supplements (12 Month Exemption)
Cannabis products considered to be health supplements are those containing a daily dose of less than 20mg cannabidiol (CBD), as well as those containing less than 0.001% of THC, or less than 0.0075% CBD.
These products may be bought and sold relatively freely as a result of the exemption published in the Government Gazette on 23 May 2019.