It has happened! Following the Constitutional Court judgment handed down on 18 September 2018, which declared that an adult may cultivate, use and be in possession of cannabis in private for his or her own consumption, Cabinet has approved new draft laws to be submitted to Parliament which sets out the legal requirements relating to the possession of cannabis in South Africa.
It’s been almost two years since the Constitutional Court declared certain sections of the Medicines and Related Substances Act and Drugs and Drug Trafficking Act unconstitutional and against a persons’ right to privacy. The Court gave Parliament until 18 September 2020 to amend these sections to allow an adult to cultivate, possess and use cannabis in private.
Despite our current global pandemic, the Department of Health did just that - the Medicines Act was amended in May this year, completely removing cannabis from the Schedules to the Act and providing that the raw plant material can be cultivated, possessed and consumed by an adult in private for personal consumption. The Department of Correctional Services, however, has been quite silent on any amendments to the Drugs and Drug Trafficking Act. But we are starting to see some light in this hazy cloud of smoke. On Thursday, 6 August 2020, during a Cabinet meeting, the Minister of Justice and Correctional Services, Ronald Lamola shared some exciting and long-awaited news that Cabinet has approved the submission to Parliament of the Cannabis for Private Purposes Bill of 2020 for processing. He went on to say that “the Bill gives effect to the Constitutional Court judgment that declared unconstitutional some parts of the Drugs and Drug Trafficking Act of 1992 and Medicines and Related Substances Control Act of 1965. The judgment was suspended for 24 months to allow Parliament to correct those sections. This Bill regulates the use and possession of cannabis and the cultivation of cannabis plants by an adult for personal use. It provides the limit of the quantity of cannabis that may be possessed by an adult and criminalises the smoking of cannabis in public spaces”.
Let’s be blunt - it is unlikely that these new laws will to come into effect before the September 2020 deadline, but at least it’s a step closer to some much needed clarity on some of the grey areas and uncertainties that came from the Constitutional Court judgment.
Some of the notable provisions of the Bill include:
• An adult person can consume cannabis in a private place.
• The prescribed quantities that an adult person may possess for personal use are:
◦ Unlimited seeds
◦ Four flowering cannabis plants per adult and eight flowering plants for homes with two or more adults
◦ 600g of dried cannabis and 1.2kg for those homes occupied by two or more adults
◦ 100g dried cannabis or one flowering cannabis plant in a public place.
• An adult can exchange, for no remuneration:
◦ 30 seeds
◦ One flowering cannabis plant
◦ 100g dried cannabis.
• The Bill sets out offences for those who exceed the prescribed quantities, for example, a maximum jail term of 15 years is prescribed for those who deal in cannabis or provides it to a child; anyone who smokes in public, or too close to a window, or in the immediate presence of a non-consenting adult, may be imprisoned for up to two years; and smoking in the presence of children can get you a sentence of up to four years.
• Where a person has been convicted of the use or possession of dagga, the criminal record, containing the conviction and sentence in question of that person in respect of that offence, must be expunged automatically by the Criminal Record Centre of the South African Police Service.
• THC and cannabis have been removed from Part II of Schedule 2 of the Drugs Act and the National Road Traffic Act of 1996 has been amended to include an offence for driving under the influence of THC.
The Bill also creates a system of equivalency, for example, two immature plants, that is a non-flowering cannabis plant that is either taller or wider than 15cm, is equal to one flowering plant and five grams of fresh cannabis is equal to one gram of dried cannabis. This means that a person can have with them up to two immature plants or 500 grams of fresh cannabis in a public place. The draft laws also provide that the Minister of Correctional Services must prescribe regulations relating to for example, the manner of measuring immature plants and seedlings, standards regarding cultivation, storing and transportation of the cannabis plants and the manner in which cannabis plants or cannabis which exceed the prescribed quantity must be disposed of.
The new Bill answers some of the questions we had following the Constitutional Court judgment and hopefully the implementation of these new laws will create more clarity than confusion.