This follows the 2018 Constitutional Court judgment of Minister of justice and constitutional development and others v Prince (Clarke and others intervening); National director of public prosecutions and others v Rubin; National director of public prosecutions and others v Acton [2018] ZACC 30.
In the judgment, the Constitutional Court declared certain provisions of the Drugs and Drug Trafficking Act and the Medicines and Related Substances Control Act unconstitutional insofar as the legislation unconstitutionally infringed on the right to privacy through its criminalisation of the private use and cultivation of cannabis. Furthermore, the Constitutional Court stated that the use of cannabis is legal for both medical and personal use. It is worth noting that it is still currently unlawful to use cannabis outside of your private place, or to buy and sell it.
The cannabis draft bill defines “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 cannabis draft bill seeks to address new possession rules for cannabis users in their private places, as well as rules regarding cultivation of the plant. The cannabis draft bill sets out prescribed quantities for personal use of cannabis, as well as for cultivation purposes.
Some argue that these prescribed quantities are unduly restrictive in comparison with the government’s regulation of tobacco and alcohol, while others argue that cannabis is different to alcohol and tobacco, and that their regulation is rooted in commercial interest rather than in health and the public’s interest.
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On the topic of commercial interest, the cannabis draft bill has been subject to criticism in that it fails to address the commercial aspects of cannabis. This is due to the fact that it prohibits the exchange of remuneration for cannabis, which forces individuals to obtain cannabis illicitly, while depriving the government of taxable income, which would be of great benefit to the economy. The cannabis draft bill had the potential to unlock financial growth opportunities, but fails to address the potential creation of companies and jobs, and the subsequent tax revenue, which could be generated through a more progressive approach.
The cannabis draft bill has also been criticised for lacking a collaborative effort in its drafting, with industry experts being of the opinion that the Departments of Agriculture, Health and Finance should have been included when the Department of Justice and Constitutional Development drafted the bill. In this regard, the bill has been construed to be one of narrow perspective, seeking more to restrict the use of cannabis than to optimise the use and enjoyment of the herb.
Nonetheless, it may come as good news to some that the cannabis draft bill intends to expunge the criminal records of those who have been convicted on cannabis-related offences in terms of:
(a) section 2(b) of the Abuse of Dependence-producing Substances and Rehabilitation Centres Act, 1971 (Act 41 of 1971), in that the person used or possessed the dependence-producing drug or plant of cannabis (dagga);
(b) section 4(b) of the Drugs and Drug Trafficking Act, 1992 (Act 140 of 1992), in that the person used or possessed the undesirable dependence-producing substance of cannabis (dagga); or
(c) any law of the former Republics of Transkei, Bophuthatswana, Ciskei or Venda, or of any former self-governing territory, as provided for in the Self-governing Territories Constitution Act, 1971 (Act 21 of 1971), before the commencement of the Constitution of the Republic of South Africa, 1993 (Act 200 of 1993), that criminalised the use or possession of cannabis (dagga).
However, the cannabis draft bill also sets out new offences for those who do not abide by the rules regarding possession, consumption and cultivation. Some of the new offences include persons who exceed the possession limits in a private or public space, persons who smoke cannabis in a public space or in the immediate presence of a child, as well as persons who consume cannabis in a vehicle on a public road. Penalties for these offences include a fine and/or imprisonment of up to 15 years.
While the cannabis draft bill comes as a celebration to many, it is evident that the bill has not optimised the potential avenues available through cannabis cultivation and consumption. Optimising the commercial aspect of cannabis consumption and cultivation would be beneficial not only to cannabis consumers, but also to the South African economy, especially amid the financial implications of the COVID-19 lockdown regulations.
