Cannabis users in South Africa can finally breathe easier: the President has signed the Cannabis for Private Purposes Act (CFPPA) into law, which means adults who use, consume or possess cannabis for their personal consumption are no longer at risk of prosecution.
The act specifically deals with private use and allows those with previous convictions unrelated to drug dealing — in South Africa and the former homelands pre-1993 — to have their criminal records expunged automatically.
Those convicted on the basis of the presumption of dealing in cannabis can also apply to have their criminal records expunged.
Cannabis is now defined as the flowering or fruiting tops of the plant, not the stems, seeds, branches or other biomaterial, which are designated as “hemp”.
Last week, in announcing the enactment of the law, the Presidency noted that cannabis has been removed from the Drugs and Drug Trafficking Act.
“This will further enable amendment of the Schedules to the Medicines and Related Substances Act and provide for targeted regulatory reform of the Plant Breeders Rights Act and the Plant Improvement Act, as well as other pieces of legislation that require amendment to allow for the industrialisation of the cannabis sector.”
The Act allows for cannabis to be medically prescribed to a child while also protecting children from exposure to cannabis. It provides for an alternative manner by which to address the issue of the prohibited use, possession of, or dealing in, cannabis by children, with due regard to the best interest of the child.
While the Act does not give children the right to use, possess or cultivate cannabis, it also does not criminalise it, so children found to have contravened any cannabis-related legislation are to be dealt with outside the criminal justice system in terms of the Children’s Act, 2005, the Prevention of and Treatment from Substance Abuse Act, 2008, or any other relevant legislation.
Dealing in cannabis remains prohibited and adults found guilty of buying or selling cannabis for payment/reward (unless authorised to do so in terms of another act, permit or licence) may be sentenced to a fine and/or imprisonment of up to 10 years.
Caution
In an article titled “Seeds of opportunity: Exploring cannabis and hemp cultivation laws in South Africa and beyond”, Cliffe Dekker Hofmeyr attorneys Belinda Scriba and Claudia Grobler, and candidate attorney Luke Kleinsmidt, warned that the distribution of cannabis for commercial and recreational purposes remains illegal and constitutes a criminal offence.
Referencing the recent case of S v Haggis and Another (17 March 2023) — where the accused was found guilty of dealing in more than 300kg of cannabis — they said perpetrators found guilty of distributing cannabis in exchange for payment may be sentenced to a fine and/or imprisonment.
For their own usage, adults may possess cannabis in a public place, although they may not use it publicly. Nor may they use it near children or where the smoke is likely to cause a disturbance or nuisance to others.
The Act states that adults may, in a private place, use or possess cannabis; and — without any form of consideration (compensation, gift, favour, reward or benefit) — obtain cannabis from other adults, for private purposes.
This may have an impact on private cannabis clubs set up to grow members’ private cannabis crops rather than directly buying, selling or dealing in cannabis, says cannabis legal expert Shaad Vayej, noting it could affect the outcome of The Haze Club (THC) matter on the legality of private grow clubs, which is set to be heard in the Supreme Court of Appeal in October.
The definition of “private place” has evolved since the earlier draftings of the Bill. It now includes any building, house, room, shed, hut, tent, mobile home, caravan, boat or land, or any portion thereof, which the public doesn’t have access to as a right. It goes even further by incorporating any part or portion of communal land, as defined under the Communal Land Rights Act, where cannabis cultivation is a custom or is allowed under the rules applicable to that land.
Cannabis industry lobby group, Fields of Green (amicus curiae in the THC matter) hopes that the enactment of the CFPPA could render THC’s constitutional challenge against the Drugs and Drugs Trafficking Act “moot” because its judgment would be “rendered academic and of no practical force or effect”.
The justice minister will now be required to draft regulations guiding maximum amounts of cannabis; the conditions, restrictions, prohibitions and other requirements regarding the transportation of cannabis; the form a person’s written application for the expungement of a criminal record must be made; the certificate of expungement to be issued by the Director-General; and the manner in which the DG must submit certificates of expungement that have been issued, to the head of the Criminal Record Centre of the South African Police Service.
Job creation
This is the first significant legislative move in the long-anticipated regulatory reform and structural changes outlined by the National Cannabis Masterplan, which is aimed at promoting job creation and economic prosperity through the industrialisation of cannabis, says Shaad Vayaj.
“One of the biggest hurdles to large-scale private and institutional investment in the cannabis industry was the risk that despite medical cannabis being allowed and strictly regulated under the Medicines and Related Substances Act and industrial cannabis (low-THC-containing hemp) allowed and regulated under the Plant Improvement Act, cannabis as a whole was still considered an undesirable dependence producing substance under the Drugs and Drugs Trafficking Act, potentially exposing investors in industrial projects to the risk of facilitating the commission of crimes related to dealing in drugs.”
By specifically regulating only the flowering tops and not the rest of the plant, which is regulated in terms of the Plant Improvement Act, investment can now flow without the risk of criminal sanction.
Vayej says with cannabis now removed entirely from the Drugs Act, it opens the door to commercial investment in compliant businesses, particularly within the industrial cannabis space such as green energy, biofuels, sustainable, carbon-neutral building materials, paper, textiles, cosmetics, food and other commercial industrial uses allowed by the Plant Improvement Act, which provides a legal framework for the cultivation, distribution and sale of hemp in South Africa.
With more regulatory certainty, the seeds, seedlings, stalks, leaves and branches — which are used to make furniture, fuel and alternative building materials — the jobs envisaged in the National Cannabis Master Plan can finally be created. DM
