Is the 2020 (South Africa) Cannabis Bill a flower among weeds or a weed among flowers?

The International Law Office writes

Introduction

The 2020 Cannabis Bill does little to revise its 2019 predecessor in recognising the Constitutional Court’s rulings in The Minister of Justice and Constitutional Development v Prince, National Director of Public Prosecutions v Rubin and National Director of Public Prosecutions v Acton, which legalised adults’ cultivation, possession and use of cannabis for private use and recreational purposes. As such, the regulation of cannabis for non-medicinal use remains heavily restricted and retributive. In this regard, the minister of justice and correctional services makes it an offence to use, possess or cultivate certain cannabis quantities which exceed their respective prescribed amounts. Accordingly, there is a fine line between the amount of cannabis which is, and is not, considered acceptable.

2020 Cannabis Bill

Broadly, the 2020 Cannabis Bill permits ‘adults’ (ie, persons who are at least 18 years old) to do the following where it is for personal use:

  • possess an unlimited quantity of cannabis seeds or seedlings;
  • cultivate four flowering cannabis plants (per adult) in a private place (but no more than eight per dwelling);
  • possess, in private, 100g of cannabis in a public place; and
  • possess 600g of cannabis per adult in private (but no more than 1.2kg per dwelling).

The bill groups offences into four categories – ranging from Class A offences to Class D offences. Each offence carries different penalties, with Class A being the most punitive and Class D being the least. The penalties for each of these kinds of offence are as follows:

  • A person guilty of a Class A offence is liable on conviction to a fine, up to 15 years’ imprisonment or both.
  • A person guilty of a Class B offence is liable on conviction to a fine, up to six years’ imprisonment or both.
  • A person guilty of a Class C offence is liable on conviction to a fine, up to four years’ imprisonment or both.
  • A person guilty of a Class D offence is liable on conviction to a fine, up to two years’ imprisonment or both.

The bill legalises the possession of the prescribed quantity (as set out above) and thereafter criminalises possession of quantities in excess of this amount. Whether a person is guilty of a Class A, B or C offence will depend on the amount of cannabis that they possess in excess of the prescribed quantity. In all cases, where a person possesses an amount that is deemed to be trafficable, that person will be guilty of a Class B offence. If they possess an amount that is deemed to be commercial, they will be guilty of a Class A offence.

Although not an exhaustive list of the kinds of conduct considered to be offensive under the bill, a person who possesses between 800g and 1kg of cannabis in private will be presumed to be trafficking cannabis and therefore guilty of a Class B offence. Any person in possession of 1kg or more in private will be deemed to be engaging in commercial cannabis activity and will be guilty of a Class A offence.

Comment

At first glance, how the South African legislature has elected to regulate the personal use and possession of cannabis may appear arbitrary and even punitive. However, when considered in the global context, or at least with regard to how recreational cannabis is regulated in various foreign countries, the South African measures appear somewhat progressive – at least in respect of the quantities of cannabis that an adult may legally possess.

In South Africa, adults can generally legally possess greater amounts of cannabis than in many other foreign countries where the possession of cannabis has been legalised or at least possession of minimal amounts is not prosecuted. Across many of these foreign countries, persons can legally possess between 10g and 30g of cannabis before facing a penalty. The most severe penalty across a number of these foreign countries for exceeding the prescribed legal amount tends to be a prison sentence of between six months and three years. The penalty for exceeding the prescribed amount in South Africa is by comparison far more punitive, with imprisonment of up to 15 years in some instances. This brings into question the proportionality of the penalty with respect to the offence. Perhaps the stricter approach taken in South Africa is reflective of its policy of no tolerance for cannabis commercialisation.

Even though South African adults can legally possess significantly more grams of cannabis than adults in various other countries, the cost of exceeding these amounts is far greater. Thus, is the 2020 Cannabis Bill a flower among weeds or merely a weed among flowers?

For further information on this topic please contact Altair Richards or Alexandra Wood at ENSafrica by telephone (+27 11 269 7600) or email ([email protected] or [email protected]). The ENSafrica website can be accessed at www.ensafrica.com.

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