With the laws changing on Cannabis usage changing world wide, what is the status of marijuana in South Africa?

While illegal, marijuana is an important cash crop for rural communities, particularly in the Eastern Cape and KwaZulu-Natal provinces. Medical licenses can now also be applied for following on from Lesotho and Zimbabwe.

South Africa Law and Cannabis

  • The Constitutional Court of South Africa, the country’s highest court,  ruled that the personal use of cannabis is not a criminal offence.
  •  The court ruled that the ban on private possession and consumption, and cultivation of the plant for own use is unconstitutional.
  • It found that the country’s cannabis ban infringed on section 14 of the South African constitution which gives all citizens the right to privacy.

 

Highlights of the Constitutional Court’s ruling include:

As of 4 October 2018

DECRIMINALIZATION OF CANNABIS

2. The Order has profoundly changed the rights of South African adults in relation to cannabis. In the wake of the Judgment, the full extent of the changes to the day to day lives of cannabis-smoking South Africans has yet to crystalize, but, as of 18 September 2018, the following is of application:

2.1. Adults may, for their personal consumption, use, possess and cultivate cannabis in private. In this regard, privacy is not confined to the dwelling (home) of the adult in question. Adults may, for their personal consumption, use, possess and cultivate cannabis in any place that is private and not public. The Judgment, while not setting it out expressly, appears, in paragraphs 98 to 100 thereof, to suggest that adults may have cannabis on their private person while passing through a public space, provided that same is concealed and is intended to be used for personal consumption in private.

Readers are, however, advised to exercise extreme caution in this regard, at least until the attitudes of the police, prosecutors and Courts are established.

2.2. It is still illegal for:

2.2.1. adults to use cannabis in public or in the presence of children or in the presence of non-consenting adults;

2.2.2. children to use, possess or cultivate cannabis, although readers should note that the Medicines and Related Substances Act 101 of 1965 (“the Medicines Act”) may, in exceptional

circumstances, permit the use of cannabis for the treatment of a child’s medical condition;

2.2.3. adults to possess or cultivate cannabis for any reason other than for their personal consumption; and

2.2.4. any person to buy or sell cannabis (unless in accordance with the Medicines Act).

 

THE MEDICINES ACT (in connection with Medical Cannabis)

10. For the purposes of this memorandum, as set out in paragraphs 1.3 and 9 above, section 22A(9)(a)(i) will only be considered inasmuch as it relates to medical practitioners and their patients. In this regard, the combined effect of sections 22A(9)(a)(i), 29(k) and the Order is that:

10.1. it is a criminal offence for a person to sell or purchase cannabis, or to use, possess, and cultivate cannabis for any purpose other than for personal consumption by adults in private, without a permit duly issued by the Director General of the Department of Health

(“the Director General”);

10.2. such a permit may only be issued in order to provide a medical practitioner with cannabis; and

10.3. such a permit may only be issued for the purpose of treating or preventing a medical condition in a particular patient

(“Medicinal Purposes”).

11. However, section 22A is silent on from how or where medical practitioners are to source their cannabis. But it is also apparent that permit-bearing medical practitioners must be able to obtain cannabis to provide to their patients. Therefore, they must, at the very least, be able to purchase cannabis locally from a third party.

12. From a supply perspective, section 22C(1)(b) of the Medicines Act effectively allows any Supplier to apply to the South African Health Products Regulatory Authority (“SAHPRA”) for a licence to import, export, act as a wholesaler of or distribute cannabis. However, this provision directly contra dicts section 22A(9)(a)(i), which states that no person may acquire, use, possess manufacture or supply cannabis for medicinal purposes without a permit duly issued by the Director General. More problematic is the fact that section 22A(9)(a)(i) only allows for the Direc tor-General to issue a s22A permit to a “medical practitioner, analyst, researcher or veterinarian” but makes no mention of other prospective suppliers of cannabis.

13. Notwithstanding the aforegoing, the Guidelines on Cultivation of Cannabis and Manufacture of Cannabis-Related Pharmaceutical Products for Medicinal and Research Purposes, published by the Medicine’s

Control Council (SAHPRA’s previous identity), in November 2017, (“the Guidelines”) provide that applicants for a licence in terms of section 22C(1)(b) (“a s22C Licence”) must also apply for a s22A permit in order to acquire, possess, manufacture, use or supply cannabis for medicinal purposes. This position is, for the reason stated in paragraph 12 above, incorrect. Nevertheless, section 22C(1)(b) remains the only avenue available to prospective suppliers who wish to import, export, act as a wholesaler of or distribute cannabis.

14. In any event, the practical requirements, to which applicants in terms of section 22C(1)(b) must adhere, are not affected by the contradictions contained in the Medicines Act and are, to a large extent, a manifestation of South Africa’s international obligations in terms of the United Nations

Single Convention on Narcotic Drugs (1961) (“the Single Convention”) and a number of adopted international best practices.

15. To this end, the procedure which underpins the acquisition of a s22C

Licence is unlikely to change to any great extent following any conceivable changes to South Africa’s cannabis laws.

Full document as prepared by Schindlers Attorneys: Legal Status of Cannabis in South Africa

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