South Africa Faces Backlash Over Strict Penalties in Long-Awaited Proposed Cannabis Bill

South Africa has some of the most liberal laws in place and on the 1st of September 2020, the parliament has released the Cannabis for Private Purposes Bill. After allowing cannabis use in a private capacity in accordance with the human right of privacy, the parliament was allocated 24 months to establish the regulations and laws surrounding cannabis in the country. This would appear to be exciting news for the citizens; however, the nation is instead criticizing the proposed laws and regulations as severe penalties will be implemented and big problems are coming to light. Neil Lidell, director at The Haze Club, called out the South Africa cannabis bill as “disappointing and flawed”. 

The South African Cannabis for Private Purposes Bill

In 2018, the Constitutional Court of South Africa ruled that parts of the (a) Drugs and Drug Trafficking Act and (b) Medicine and Related Substance Control Act are unconstitutional. As such, they ruled it legal for citizens to use cannabis for recreational and medicinal use, as long as it is done in the private capacity of the home. It remained illegal to buy or sell cannabis as well as to consume cannabis outside of private capacity. 

Now the new draft bill has been released and it outlines the rules of possession and cultivation, the offenses as well as the provisions for people who have previously received a criminal record for cannabis-related offenses. The bill has defined private capacity as any place such as a building, room, tent, boat, or any portion thereof where the public has no right to access. However, the proposed regulations and law offer little more than what was mandated by the Constitutional Court. Law firm Cliffe Dekker Hofmeyr stated that “What those in the industry were hoping for was a collaborative effort between the various departments such as Health, Agriculture, Finance, and the like”. 

The bill states that an adult, 18 years and older, may possess the allowed quantity of plant cultivation material, cultivate the allowed quantity, carry the allowed quantity in a private capacity but in public spaces as well as possess the allowed quantity of cannabis in a private dwelling. The bill also allows adults to obtain cannabis from one another, as long as there is no exchange of money.

Quantities Applicable

• Unlimited seeds and seedlings.
• Four flowering plants for those living alone or eight for households of two or more adults. 
• 600 grams of dried cannabis for those living alone or 1.2 kilograms in households of two or more adults. 
• 100 grams of dried cannabis on person in public places, which is concealed from public view. 
• Offenses are Applicable

The parliament has set strict penalties for individuals who are found breaking any of the offenses. With the most shocking of these penalties being the fact that imprisonment can go up to 15 years with a minimum of a fine or two years in prison.  

Notable Offenses Include:

• Any person exceeding possession limits in a public or/and private capacity.
• Any person smoking cannabis in a public place. 
• Any person smoking in the immediate presence of a non-consenting adult.
• Any person smoking in the immediate presence of the minors (18 years and younger).
• Any person smoking in a private place but near a window, ventilation inlet, or doorway which leads to or enters another place.
• Any person smoking in a vehicle on a public road. 
• Any guardian allowing minors to deal, possess or consume cannabis. 

The bill also outlines criminal record expunging and if the individuals meet the criteria, their records of the offense will automatically be expunged by the Criminal Record Centre of the South African Police Service. 

Why are South Africans Criticizing the Cannabis for Private Purposes Bill?

Perhaps the criticism with the most support is about the parliament’s complete ignorance of the commercial reality related to cannabis. They have made exchanging cannabis for remuneration (money) which essentially bans all sale of cannabis. The parliament failed to address the commercial aspects and the opportunities that cannabis could bring to the country. 

Law firm Cliffe Dekker Homeyr explained that failing to address those aspects, parliament is basically forming individuals to obtain cannabis illicitly, which will only create a bigger need for the existence of the black market. Not to mention the fact that the parliament is depriving the economy of the income tax. The only commercial opportunity currently available in South Africa’s cannabis industry is offered to farmers who qualify for export or testing supplies. The bill does not allow the whole country the opportunity to be a part of- and benefit from the cannabis economy. Let’s not forget the steep punishments are awaiting any person with more than 4 or 9 plants or more than 600grams or 1.2 kilograms (respectively).

Andrew Lawrie, an attorney, told Mail & Guardian that “although the bill did technically meet the stipulations imposed by the court, it was very disappointing because parts of it make no sense whatsoever”. For instance, the bill rules out the sale and buying of seeds, yet we are only allowed to grow. How are we supposed to grow plants from seeds we cannot buy, but that we can have unlimited amounts of?

Now that the cannabis economy has basically been made illegal, the experts have had a look at the underground cannabis economy and estimated that it would contribute around R100 billion (around $5.9 billion USD) a year to the underground market (the black market). Adding to this, the harsh penalties are unpopular (go figure) and is expected to be challenged should the bill be made law. 

My Personal Thoughts:

I personally can’t wrap my mind around how the parliament was allocated 24 months to address the cannabis industry, only to draft slightly more than what was mandated. The bill is far removed from the reality that surrounds cannabis and it was drafted as though they had no knowledge of the cannabis industry. It would seem that the legalization is still looking to restrict access to the people while robbing themselves (a third-world country) of legal and taxable income. South Africa is filled with innovation and hard-working farmers and has even produced a world-known strain called Durban Poison. There is massive potential for the country to use the cannabis industry to alleviate some of the poverty and improve infrastructure such as schools. Countries, including other third-world countries, with less time, produced more.