The Department of Agriculture, Land Reform and Rural Development has released its draft cannabis master plan, which aims to turn marijuana into a viable business sector for the country.
Included in the master plan’s list of priorities, is the signing of the Cannabis for Private Purposes Bill into law within the 2022/2023 financial year.
This follows the landmark Constitutional Court judgement in September 2018 which ruled that the use, possession and cultivation of cannabis in private dwellings was not illegal and should be allowed in South Africa.
However, even though private use of cannabis has been decriminalised, the buying and selling of cannabis, cannabis oil and cannabis seeds remain illegal.
The Constitutional Court gave parliament 24 months from the date of the judgment to bring the ruling in line with South African laws. The Cannabis for Private Purposes Bill was developed to address the concerns raised by the Constitutional Court.
In September 2020, government published the draft Cannabis for Private Purposes Bill for public comment.
The new draft bill outlines possession rules for cannabis users at the home as well as for people who wish to cultivate the plant. It also introduces new offences, as well as provisions for people who previously received a criminal record for cannabis possession.
The draft bill states that an adult person may for personal use:
- Possess the prescribed quantity of cannabis plant cultivation material;
- Cultivate the prescribed quantity of cannabis plants in a private place;
- Possess in private, the prescribed quantity of cannabis in a public place;
- Possess the prescribed quantity of cannabis in a private place;
- Possess in private, the prescribed quantity of cannabis plants in a public place.
The bill defines a ‘private place’ as any place, including a building, house, room, shed, hut, tent, mobile home, caravan, boat or land or any portion thereof, to which the public does not have access as of right.
The draft legislation also states that an adult person may, without the exchange of remuneration provide to, or obtain from, another adult person, for personal use the prescribed quantity of:
- Cannabis plant cultivation material;
- Cannabis plants;
- Cannabis.
The draft bill sets outs ‘prescribed quantities’ for both personal use and cultivation purposes.
For private use, the limits include:
- Unlimited seeds and seedlings;
- Four flowering plants for those living alone, or eight for homes with two adults or more;
- 600 grams of dried cannabis if you live alone, or 1.2 kilograms in homes with two or more adults;
- 1.2 kilograms dried cannabis or cannabis equivalent per dwelling which is occupied by two or more adult persons.
The bill also allows for the possession of cannabis ‘in private’ in a public place, but this is limited to 100 grams.
The draft bill defines ‘in private’ as to keep, store, transport or be in control of cannabis or a cannabis plant, respectively, in a manner that conceals it from public view.
Potential problems
While further clarity around cannabis has largely been welcomed in South Africa, legal experts have warned that the draft bill throws up a number of red flags.
“The focus remains on restricting access to, and the use of, cannabis against the threat of rather severe legal consequences in the form of fines and jail time,” said legal firm Cliffe Dekker Hofmeyr in an analysis of the draft bill.
“What those in the industry were hoping for was a collaborative effort between the various departments such as Health, Agriculture, Finance, and the like.”
Cliffe Dekker Hofmeyr said that the drafters of the bill have seemingly adopted a ‘narrow and traditionalist perspective’, which as currently constructed, does not give an inch more than was mandated by the Constitutional Court.
Perhaps the most glaring of all the omissions from the bill is its complete failure to address most commercial aspects and opportunities of cannabis, the firm said.
“Furthermore, by prohibiting the exchange of remuneration for cannabis, cannabis plants, seeds, and seedlings, the Bill envisages idealistic altruism while completely ignoring the commercial realities involved in growing, processing, and supplying cannabis for personal consumption.
“In practice, this amounts to self-defeating legislation, forcing the average person to obtain cannabis illicitly, reinforcing the existing black market, and depriving the economy of attainable tax income.”
Currently, the only commercial opportunities available in the industry relate to farmers who can obtain a licence to either export their yield or supply it to a laboratory that has the necessary licences for the treatment, processing, and manufacturing of cannabis-related products, the firm said.
This is insufficient to ensure that the whole country has the opportunity to participate in, and benefit from, the cannabis economy.