‘Dabbling in weed could be good for democracy’, ‘Western Cape has high hopes for marijuana market’, ‘The great green gold rush’, ‘The dagga business is booming already – even though nobody is officially selling any yet’ … These are just a few of the headlines featured on news sites in recent weeks. As excitement over the possibilities of an expanding cannabis market escalates, Julie Oppenheim and Samantha Mason of Bowmans take a look at the facts – and the risks – around cannabis use and the law.

Seldom has a court ruling caused as much of a sensation among the South African public as the Constitutional Court’s landmark decision in September 2018. The case that had everyone sitting up and taking notice was of course Minister of Justice and Constitutional Development and others v Prince and others.

In essence, the Constitutional Court’s finding was that it is not a criminal offence for an adult citizen to use, possess or grow cannabis in private for personal consumption, whether for recreational or medicinal use.

As the headlines show, the response to this ruling has been positively euphoric – to the point that the public could be forgiven for thinking cannabis use in South Africa is now a free-for-all where anything goes.

Well, it is not, and it would be unfortunate if ordinarily law-abiding citizens, caught up in the cloud of confusion over the current state of cannabis regulation, were to land in hot water as a result.

This could be easier than you think considering the many grey areas in the law and so being aware of the legal risks is essential for anyone contemplating a courtship with cannabis.

The line between private and public use

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. Every citizen has the right to privacy and this right informed the Constitutional Court’s decision in the famous cannabis case of September 2018.

What we do not know is precisely what ‘private use’ means. The Constitutional Court did not define the scope of private; rather it left 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. 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. This is why the state is required to have reasonable grounds for doing so.

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.

This would not extend to spaces used by other groups or the broader community, such as a park or the street.

But ‘private’ is not only about where and with whom cannabis might be used. Also pertinent is how much cannabis would be acceptable for a private person to grow, possess or use. The reason is that dealing in cannabis (and other drugs) remains a serious criminal offence. Dealing includes the supply, administration and sale of cannabis. Sale and distribution of cannabis is not ’private use’ and is not protected under the scope of the Constitutional Court judgment. Subject to certain limited exceptions discussed below, the sale of cannabis therefore remains a criminal offence.

The question here is: how much cannabis does it take to cross the line from private use to dealing?

How much is too much?

The Constitutional Court did not prescribe the quantity of cannabis that would qualify for personal use. Instead, it gave Parliament 24 months from the date of the judgment to incorporate appropriate provisions into the relevant legislation.

We have heard that a Bill regulating cannabis is soon to be published for public comment, although this has not been officially confirmed and we have not seen any such draft.

In the meantime, 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. If so, the individual could be considered to be ‘dealing’ in cannabis in contravention of the Drugs and Drug Trafficking Act, 1992.

In order 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 relevant to the assessment of a situation where someone is found in possession of cannabis in public or is cultivating cannabis in what may be other than in a private place.

Exercising police discretion

According to the directive, in deciding whether or not the cannabis involved is for personal consumption, 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. This could mean issuing a summons or written notice, or arresting the person (if in possession of other types of drugs or a flight risk).

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. The wide room for discretion – by SAPS, the prosecutor and even the courts – leaves this an uncomfortable space to dabble in.

As if all this uncertainty were not enough to encourage caution when it comes to cannabis, there is the much-overlooked fact that buying or selling cannabis products (even for medicinal purposes) remains a criminal offence unless:

• The products have been cultivated, manufactured and sold under a licence granted by the South African Health Products Regulatory Authority (SAHPRA), or
• The products fall within a specific exemption issued by the SAHPRA.

It is worth noting, however, that the sale of processed hemp fibre is permitted if it contains less than 0.01% of tetrahydrocannabinol (THC), the psychoactive component of cannabis. The sale of products manufactured from such hemp is also permitted. There are still restrictions, though, as these products may not contain whole cannabis seeds or be in a form that can be ingested, smoked or inhaled.

Also, hemp is still cannabis and may only be mass produced under a licence from SAHPRA – for now at least. The Department of Agriculture, Forestry and Fisheries (DAFF) is working towards taking over the regulation and cultivation of hemp, but no official announcement has been made yet.

Licence to grow, buy or sell medicinal cannabis

Anyone wanting to grow, test, manufacture, buy or sell cannabis (or cannabis products) for medicinal purposes in South Africa needs a licence to do so from SAHPRA.

The cannabis plant itself is classified as a Schedule 7 Substance (the same classification as heroin) under the Medicines and Related Substances Act, 1965 (Medicines Act). In order to ensure safety and quality, cannabis-containing medicines must be registered with SAHPRA.

This was the position before the Constitutional Court’s cannabis ruling and it remains the position today. The only change that the ruling brought about was to legalise the private use of cannabis for personal consumption, including for private medicinal use.

As far as we are aware, no cannabis-containing medicines have been called up for registration and as a result 56 patients in South Africa have acquired a permit to legally use unregistered cannabis-containing medicines. This permit is pursuant to section 21 of the Medicines Act, which allows for unregistered products to be sold in South Africa subject to certain conditions.

To date, it has been reported that 21 applications for the cultivation and manufacture of cannabis products have been received by SAHPRA and only one such licence has been issued. However, it seems that there is very little that this sole licence holder can actually do with the cannabis it grows – in South Africa at least.

At this stage, only one type of medicinal product containing cannabis can be bought or sold without the usual restrictions on medicines: products considered to be health supplements.

Health supplements exempted – for 12 months

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 – a development that has perhaps fuelled the false impression among many South Africans that the cannabis market is suddenly opening up to any and all products.

However, even this exemption carries limitations. It applies only for 12 months and is intended to create an opportunity for the fledgling cannabis industry to engage on a legal framework going forward. In the meantime, does this mean that large amounts of cannabis can be freely cultivated in order to manufacture these products? Probably not. Remember that the provisions on dealing under the criminal law remain applicable, unless you have a cultivation licence from SAHPRA.

Playing it safe

Until some of the many grey areas in the regulation of cannabis have been clarified, here is the basic legal position on cannabis in South Africa:

• 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 specific health supplements and processed hemp fibre detailed above, buying and selling cannabis or any cannabis-containing product is currently not legally permissible.

In short, until a clear legal framework is in place, one should err on the side of caution.

Written by Julie Oppenheim (Partner) and Samantha Mason (Candidate Attorney), Bowmans