Following the Constitutional Court’s landmark judgment passed down in September of 2018, the personal use of cannabis has been decriminalized and parliament has been afforded 24 months within which to pass the relevant legislation to govern this new dispensation. To this effect, a draft regulation of cannabis Bill has been made public earlier this year and has been sent to various government departments for their comment and will be made available for public comment some time prior to its September 2020 deadline. Its contents, especially the quantities mentioned therein and dealt with below, remains open to change until the Bill is passed.
In terms of the above draft Bill, South Africans will be allowed to possess up to 600g of dried Cannabis per person for their personal use and in the privacy of their homes. In households of two or more, the allowable amount is 1200g and even though one is allowed to possess up to 60g in public, public consumption thereof remains illegal. The sale of cannabis, especially the THC component thereof, is still strictly regulated and illegal and any person found doing so will be in contravention of the Drugs and Drug Trafficking Act No. 140 of 1992 (link: https://www.justice.gov.za/legislation/acts/1992-140.pdf), and can be sentenced to up to 10 years imprisonment depending on the circumstances.
A further result of the above mentioned judgment is that individuals are allowed to grow their own cannabis, however great caution should be exercised when doing so as you can easily find yourself on the wrong side of the line of what is allowable in terms of the above regulations and what is prosecutable under the Drugs and Drug Trafficking Act. Should you be caught growing a large quantity of cannabis, it would be highly unlikely that it is for your personal and private use and you “will be presumed” to be dealing in cannabis under the Drugs and Drug Trafficking Act, until the contrary is proved. Police have quite a wide discretion in the latter determination.
For purposes of its commercial use it is important to distinguish between two fundamental components of the plant; THC and CBD, the latter being the “medicinal” component and the former the psychoactive component. On the 27th of May 2019, the South African Health Products Regulatory Authority (“SAHPRA”) issued a notice that the Minister of Health had in terms of section 22A(2) of the Medicines and Related Substances Act No. 101 of 1965, rescheduled the CBD component from a Schedule 7 medicine to Schedule 4 and thereby making it available for therapeutic use, however only for a twelve month testing period which will elapse in May 2020, subject to a renewal by the Minister - See Government Gazette No. 42477, 23 May 2019.
Schedule 4 medicines are only available on doctor’s prescription, however the minister of health has removed low dosage CBD and THC from scheduling, which opens the door for its commercial use. To this end, cannabis products with a maximum daily dose of 20mg of CBD and 0.001% of THC are no longer controlled substances/products and resultantly do not need to be registered – they are freely available. Anyone wanting to enter into the commercial market of CBD will need a certificate of analysis to determine the levels of CBD and THC, failure to do so could lead to prosecution should your levels exceed the threshold.
As mentioned earlier, the THC compound of the plant remains a Schedule 7 substance and is therefore highly regulated. Despite its private and personal use being decriminalized, it may, for the time being at least, not be used commercially and therefore may not be sold or traded. After some speculation regarding the possibility of acquiring a licence for the cultivation of cannabis for all purposes, the SAHPRA issued a media release on the 15th of October 2019 wherein it stated that its mandate is solely to issue licenses for the cultivation of cannabis for medical and
research purposes.
- Liam Connan