The constitutional court gave parliament 24 months from the date of the judgement to bring the ruling in line with South African laws. We are now in the early stages of 2020 and within this year parliament will need to launch new legislation on this topic.
The things line between private and public use
Everyone in South Africa is protected by our constitution and the right to privacy is one of the strongest rights upheld and protected by the constitution. What is clear and protected is the right to grow or use cannabis in the privacy of your own home.
What the Constitutional Court failed to do was define the scope of private use and instead left this up to the discretion of those who enforce our laws, namely the courts, prosecutors and police.
The judgement did expand the use and possession of cannabis beyond the scope of home or private dwelling. This is inline with the right of privacy as enshrined in our constitution. So, the right of privacy also extends to ones car, ones handbag, and any space that could be viewed as private in nature.To search any of these places would be an infringement of a persons right to privacy and therefore illegal for law enforcement to do.
A further insight into the judgement is that it may be possible to use cannabis related products in a group provided that all parties are over the age of 18 years.
How much is too much?
The Constitutional Court never prescribed what is the quantity of cannabis that would be considered personal use vs commercial use.
What the court did instead is give parliament 24 months from the date of the judgement to define and include appropriate provisions into the relevant legislation that currently governs this topic. That 24 month deadline will be September 2020, so within the next 7 months the powers that be must clarify this point. The industry at large is waiting eagerly to see how this will be defined and regulated going forward.
Till these provisions are implemented. The South African law enforcement has the discretion, to decide what is a reasonable amount of cannabis in a persons possession and whether that amount qualifies for private or commercial use.
To help guide police officers, the National Commissioner of the South African Police service (SAPS). Has issued a directive to its officers that sets out certain considerations that must be considered when someone is found in possession of cannabis.
Based on the directive that was issued by the National Commissioner of Police, SAPS officers are required to take note of the circumstances and surrounding facts, when determining whether the cannabis in the suspects possession is for personnel or commercial consumption.
If the suspect fails to provide a satisfactory explanation, then the police officer is allows to use discretion and decide what action can be taken if any.
If the police officer is not sure if the cannabis in the suspects possession is for personal or commercial consumption, the police officer must register a criminal case docket and determine the weight of the cannabis that the suspect has in their possession. The decision to prosecute will then lie with the prosecutor at the magistrates court.
In the event that the SAPS official is happy that the amount of cannabis in the suspects possession is small enough to qualify for personal use, then the suspect should not be arrested but the amount of cannabis should be recorded with his decisions not to proceed to arrest the suspect on his or her pocket book or diary.
In all cases, police discretion must be exercised in ‘good faith, rationally and not arbitrarily’.
Health supplements exempted – for 12 months
Currently, there is an exception for Cannabis products that are marketed specifically as health supplements and contain a daily dose of less than 20mg of cannabidiol and less than 0.001% of THC.
Products that comply are allowed to be bought and sold as a result of the exemption that was published in the Government Gazette on 23 May 2019.
Playing it safe till Parliament clearly defines personal use
Till Parliament has clarified the grey areas of regulation that currently exist with our cannabis industry, you need to be careful.
- 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.
What happens next?
We will have to sit and wait for Parliament to make the next move. Whatever happens we can be assured that the global awakening to the amazing benefits that CBD and Cannabis possess is going to help strengthen the fact that this plant and its oils need to be made available to anyone over the age of 18 years that wants to use it. We look forward to our government making amendments to the law to bring it in line with the Constitutional Court ruling back in 2018.