Cannabis law – A summary of the cannabis for private purposes bill – South Africa

The Cannabis Bill

The long-awaited Cannabis for Private Purposes Bill officially was introduced in the Government Gazette No. 43595 of 7 August 2020 after almost two years since the Constitutional Court ruled that the private use of cannabis should be decriminalised. The Constitutional Court made this ruling on 18 September 2018 and gave Parliament 24 months to amend the legislation. It was recently tabled in Parliament on 1 September 2020

The intention of the bill is to give effect to the Constitutional Court Judgement whereby certain sections of the Drugs and Drug Trafficking Act and Medicines and Related Substances Control Act were deemed unconstitutional. This will allow government to control and regulate cannabis for private purposes. In light of this, it proposes rules for growing, consuming cannabis and possession.  These rules will govern the private use and the cultivation thereof.  Interestingly, the draft bill has introduced various offences and provisions pertaining to individuals who have previously received criminal records relating to possession.

 

The purpose of the Bill

  • Respect the right to privacy of an adult person to possess cannabis plant cultivation material;
  • to cultivate a prescribed quantity of cannabis plants;
  • possess a prescribed quantity of cannabis and to smoke and consume cannabis;
  • Regulate the possession of cannabis plant cultivation material;
  • Regulate the cultivation of cannabis plants;
  • Regulate the possession of cannabis;
  • Regulate the smoking and consumption of cannabis by an adult person;
  • Protect adults and children against the harms of cannabis;
  • Provide for the expungement of criminal records of persons convicted of possession or use of cannabis;

 

What is permitted

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; and
  • Possess in private, the prescribed quantity of cannabis plants in a public place.

 

The prescribed quantities

The ‘prescribed quantities’ for private use 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;
  • 2 kilograms dried cannabis or cannabis equivalent per dwelling which is occupied by two or more adult persons.

 

What is not permitted

Individuals will not be allowed to smoke cannabis in public

 

What constitutes a private place

According to the bill a ‘private place’ can be regarded 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.

 

For purposes of exchange between individuals the limits are the following (Please note that there should be no remuneration involved):  

  • 30 seeds or seedlings, or a mixture of the two;
  • one flowering plant;
  • 100 grams of dry cannabis

 

Possession of cannabis in private in a public place

It is important to note that the bill also allows for the possession of cannabis ‘in private’ in a public place, however, this is limited to 100 grams.

As such, the definition of ‘in private’ in this context is defined 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.

 

The new offences

The bill outlines new offences for individuals who do not follow the rules pertaining to possession and consumption. These offences include:

  • Any person who exceeds possession limits in a public place;
  • Any person who exceeds possession limits in a private place;
  • Any person who smokes cannabis in a public place;
  • Any person who smokes cannabis in the immediate presence of any non-consenting adult person;
  • Any person who smokes cannabis in the immediate presence of a child;
  • Any person who smokes cannabis in a private place near a window, ventilation inlet or doorway to or entrance into another place;
  • Any person who consumes cannabis in a vehicle on a public road.

 

Breaking the rules

There are strict penalties the contravention of the offences listed above.

  • The Bill set a maximum jail term of 15 years for anyone who deals in cannabis or provides it to a minor or child.
  • You may be jailed for up to two years if you smoke cannabis in public, or too close to a window, or “in the immediate presence of any non-consenting adult person”.
  • Should you be found to be smoking cannabis in the presence of children, you could face up to four years in jail.
  • The minimum penalty for an offence is a fine or two years in prison.

 

Downloadable documents

 

This article was written by Zurayda Mayet. She is a director at Kleingeld Mayet and has acted for a wide range of clients that include multinational-corporations, government institutions, non-governmental organizations, private individuals, listed and unlisted companies. Her experience stretches across corporate, commercial, company and cannabis law in various sectors both in South Africa and Lesotho.