24 Jan Cannabis: Balancing Competing Interests
South Africa has various laws and regulations to control drug use. These include the Prevention of and Treatment for Substance Abuse Act 17 of 2008, the Drugs and Drug Trafficking Act 140 of 1992 (“the Drugs Act”), Criminal Procedure Act 51 of 1971 and the National Drug Master Plan 2006–2011, all of which prohibit the use of cannabis, be it for recreational or medicinal purposes.
Section 5 of the Drugs Act, prohibits dealing in any dependence-producing substance or any dangerous dependence-producing substance or any undesirable dependence-producing substance unless one or more exceptions listed in that section applies. The Internal Directive on cannabis issued by the South African Police Service deems section 1 of the Drugs Act, following the decision of the Constitutional Court to read 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”.
It is worth noting that there has been significant progress in respect of cannabis utilised for medical purposes. The Traditional Health Practitioners Act 22 of 2007, has legitimised the practice of indigenous health care system leading to a growing informal or semi-formal trade sector, in which a large number of medicinal plants are sold as crude, unprocessed plant material, including cannabis. Such legal acknowledgment has the effect that traditional medicine products (including cannabis and cannabis-based products) must now be brought under regulatory measures. Traditional Health Practitioners are also subject to the regulations contained in the Medicines and Related Substances Act 14 of 2015 (“the Medicines Act”).
Since the judgment in the case of Minister of Justice and Constitutional Development and Others v Prince, there has been a growing trend of illegal establishments i.e. dispensaries, online stores and social media platforms who market and sell cannabis and cannabis related products.
The traditional medicines trade is huge and growing, generating billions of rands per annum in South Africa in various sectors, and therein lies the exploitation of loopholes in the legislative framework governing cannabis. These establishments purport to be operating legally under the Traditional Health Practitioners Act, and this has prompted the South African Police Service to issue an “Internal Directives on Possession of Cannabis”. The aforesaid directive was issued after Deputy Chief Justice Raymond Zondo ruled in the Constitutional Court that “the criminal prohibition of possession, use or cultivation of cannabis by an adult person for personal consumption in private is an infringement of the right to privacy of an adult person and constitutionally invalid”.
The court did not prescribe the quantity of cannabis that will qualify as personal consumption. This by implication means that the South African Police Service is vested with the discretion to make its own determination as to the amount that does not qualify as personal consumption. In exercising discretion, a police official will rely on his or her observation as well as surrounding facts, including questioning the implicated person. In order to determine whether a person possesses, uses or cultivates the cannabis for personal consumption, the official is obliged to consider all relevant circumstances inclusive of the quantity of cannabis.
Per the directive, there is a rebuttable presumption that “the larger the quantity of cannabis involved, the greater the possibility, that the cannabis is not possessed, used or cultivated for personal consumption”. Members of the Police service are permitted, as per the directive in paragraph 6.9, to register charges in terms of section 4(b) of the Drugs Act, for the illegal use or possession in a scenario which does not fall within the ambit of the judgment, namely:
- If cannabis is used by a child (subject to the provisions of the Child Justice Act),
- If cannabis is in the possession of a child (subject to the provisions of the Child Justice Act),
- If cannabis is not possessed “in private” by an adult;
- If cannabis is not used in private by an adult; and
- If cannabis is not in the possession of an adult for purposes of his or her own consumption in private.
Furthermore, it was also directed that the Crime Administration System/Investigation Case Docket Management System must still provide for charges to be registered in terms of section 4(1)(b) of the Drugs Act and section 22A(9)(a)(i) of the Medicines and Related Substances Control Act. The internal directive provides that if a police official is in doubt as to whether the quantity of cannabis found qualify as personal consumption, the police official in question must not arrest the person provided there are other lawful and compelling reasons for an arrest such as the possession of other types of drugs or weapons and so forth. In such instances, the police official should register a criminal case docket and ensure that the person is brought to court by means of a summons or written notice. The cannabis must be seized, weighed and booked into the SAP13. Moreover, a dealer may in certain circumstances, lawfully possess small quantities for his or her own personal consumption or use in private.
As far as cannabis is concerned, the decision by the Constitutional Court is limited to the use, possession or cultivation of cannabis in private for personal consumption by an adult in private. The question of what quantity qualifies for personal consumption remains a question of fact, of which the courts have to adjudicate on the merits of each case. The judgment does not expressly deal with the scenario wherein a person may store a large quantity for use or small quantities over a long period of time.
To achieve uniformity, legislation must be amended to be in line with directives given in the above-mentioned case. As things stand, the government through the auspices of Parliament bears the responsibility to pass a bill inclusive of the recommendations delivered by the Court in the Prince case. Parliament has until the 17th of September 2020 within which to pass such a Bill, until then the cultivation, possession and personal use of cannabis remains strictly within the confines of an individual’s private home or dwelling. With regards to cannabis for medicinal purposes from cultivation, production, manufacture and use thereof, all prospective participants must be in possession of a valid licence issued by the South African Health Products Regulatory Authority and a permit issued by the Department of Health.