Part 1: Recent Changes to Drug Laws in South Africa

In recent years, global attitudes towards the drug cannabis as both a medicinal and a recreational drug have been shifting. Many countries have seen changes in law to reflect the more liberal views of their voters: sometimes decreasing penalities for possession and usage, and sometimes permitting cannabis for medical purposes. There have recently been a number of changes to cannabis laws in South Africa. Here is a timeline of the key rulings.

PRE-MARCH 2017 – SOUTH AFRICAN DRUGS LAWS:

Cannabis is deemed a Schedule 7 substance. This means that its use, possession and trade are prohibited by a combination of the Drugs and Drug Trafficking Act 140 of 1992 and the Medicines and Related Substances Control Act 101 of 1965. A criminal conviction for use or possession could be punishable by a prison sentence of up to fifteen years, and a conviction of dealing could result in a sentence of up to twenty-five years.

31 MARCH 2017 – HIGH COURT RULING: 

The High Court of South Africa finds that sections of the Drugs Act 1992 and the Medicines Act of 1965 which relate to the personal use, possession and dealing of and possession of cannabis were unconstitutional on the grounds that they infringed upon citizens’ right to privacy.

While this was a significant victory, the High Court does not have the power to change the law: only Parliament does. This means that citizens in possession of cannabis for their own personal use would still be breaking the law.

18 SEPTEMBER 2018 – CONSTITUTIONAL COURT RULING: 

This upheld the ruling of the High Court, which was necessary because the High Court is not a high enough branch of the legislature to make binding judgements on constitutional matters. The Constitutional Court gave the South African Parliament 2 years to correct the unconstitutional acts. Until Parliament has made these corrections, adults can use the 18 September ruling as a defense of their personal use, possession, purchase or cultivation of cannabis in a private dwelling.

23RD MAY 2019 – CANNABIDIOLS RULED LEGAL FOR TRADE:

The South African Health Minister removed products which contain cannabidiol ( a portion of the cannabis plant which does not give recreational drugs users the ‘high’) from the drugs schedule. This means that these products are completely legal to trade without a prescription for at least 12 months from this date.

4TH JUNE 2019 – FIRST MEDICINAL CANNABIS LICENSE GRANTED TO HOUSE OF HEMP:

Medical research on the impact of cannabis on human health is ongoing all over the globe. In South Africa, the South African Health Products Regulatory Authority (SAHPRA) regulates all health products and clinical trials in South Africa. While it is not within SAHPRA’s power to issue licenses for commercial use, it has (as of 15th October 2019) granted five licences to cannabis farms to grow medicinal cannabis for non-commercial use only.

THE FUTURE OF CANNABIS LEGISLATION IN SOUTH AFRICA

The Constitutional Court ruling of 2018 has not yet resulted in a change of law: while citizens can use the ruling as a defence if they are accused of a drug offence, they are still technically breaking the law. The Constitutional Court did not specify what quantity of cannabis is reasonable “for personal use”, so much is open to subjective interpretation on the part of the law enforcement agency. Since in many parts of South Africa the police are predominantly white and the community is predominantly black, this uncertainty has the potential to exacerbate preexisting racial tensions. The South African Parliament has until September 2020 to rewrite the law.

ALICE DOYLE

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