The law has not changed (yet)
Private use allowed and dealing prohibited
In the directive, Lt Gen Masemola reminds members of the SAPS that possession, use and cultivation of Cannabis by an adult for personal consumption, in private, is permitted and that dealing in Cannabis is not permitted.
Following the 2018 Constitutional Court judgment in the Minister of Justice and Constitutional Development and Others v Prince; National Director of Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others v Acton and Others [2018] ZACC 30, there appears to be confusion as to the legal position in relation to cannabis. In short, possession, use and cultivation of cannabis by an adult, for personal consumption, in private, is permitted. In contrast, dealing in cannabis is not permitted therefore commercialisation of cannabis is still not legal in South Africa. Following the order of the Constitutional Court, the definition in section 1 of the Drugs and Trafficking Act, No. 140 of 1992 has been expanded as follows:
"deal in", in relation to a drug, includes performing any act in connection with the transhipment, importation, cultivation other than the cultivation of cannabis by an adult in a private place for his or her personal consumption in private, collection, manufacture, supply, prescription, administration, sale, transmission or exportation of the drug.
EDIT 3 June 2024:
Cannabis was listed in the Drugs & Drug Trafficking Act when the police directive was published, but the Cannabis for Private Purposes Act has since been gazetted, which calls for Cannabis in its entirety to be removed from the Drugs & Drug Trafficking Act.
Cannabis still listed in the Drugs Act
Cannabis is included as “an undesirable, dependence-producing substance in the Drugs and Drugs Trafficking Act”, and the two bodies through which permits or licences may be acquired (SAHPRA and DALRRD) are listed in the directive.
Cannabis is still listed as an undesirable dependence producing substance in Part Ill of Schedule 2 of the Drugs and Drug Trafficking Act. Despite this, licenses or permits are, in certain circumstances, granted by the South African Health Products Regulatory Authority (SAHPRA) and the Department of Agriculture, Land Reform and Rural Development (DALRRD) permitting cannabis cultivation for medical research purposes or the cultivation of hemp (low THC cannabis) for limited purposes.
EDIT 3 June 2024:
While there are currently no prescribed maximums in the Cannabis for Private Purposes Act, the Minister will prescribe maximum quantities and these will go through Parliament (and therefore a public participation process) before they can be gazetted.
No quantities stipulated
Importantly, it is explicitly stated that there are no prescribed quantities and the amount of Cannabis found cannot be used as the presumption that someone is dealing.
There is currently no legislation that prescribes what quantities of cannabis may be possessed or cultivated in order to comply with the Prince judgement. There is also no legislation that allows for a presumption of dealing where cannabis quantities above a certain threshold is found in the possession of a person. As a result, the amount of cannabis found in the possession of a person for private consumption, in private or for cultivation cannot be used by a member to presume that the person is in fact dealing in cannabis.
Police at risk of civil claims
It goes on to say that arrests that do not result in prosecution expose the SAPS to civil claims for unlawful arrest and detention.
Since there is no definition or quantification of the concept of "personal consumption", the South African Police Services is at risk if they arrest a person for possession, use or cultivation and such matter is not enrolled, struck off the roll, or otherwise does not result in prosecution. This exposes the SAPS to civil claims for unlawful arrest and detention.
Avoid arrests where possible
The directive reminded members of the Police Service of each person’s constitutional right to dignity and urged them to consider all lawful means of securing the accused’s attendance at trial. Arrests should be the last resort.
Whenever a member has a suspicion of, or reasonable rounds in relation to an offence involving cannabis, the suspect, like any other suspect, must be treated with dignity and in compliance of the prescripts laid down by the law, including the Bill of Rights in Chapter 2 of the Constitution of the Republic of South Africa, 1996. All lawful means of securing the accused's attendance at trial, such as a summons or written notice, need to be considered before resorting to arrest and detention. For purposes of a summons or written notice, the name, residential address, occupation and status for the accused must be obtained to ensure his or her appearance at an identified court on a specific court date. A criminal case docket must be registered and the cannabis or any other exhibits must be seized and booked into the SAPS 13.
Do not pursue cases that will be thrown out
Members of the SAPS are cautioned to liaise with the prosecuting authority before arresting a suspect or seizing their property. They are advised to obtain a search and seizure warrant before conducting such operations.
Before arresting alleged cannabis offenders and the seizure of their property proceed, members of the SAPS should liaise with the prosecuting authority, where possible, to determine whether the matter will be enrolled and prosecuted. It is also advisable to obtain a search and seizure warrant beforehand, before such operations are conducted. This will ensure that the process is subject to judicial oversight and the rule of law.
Do not arrest to meet targets
It is clearly stated that no one may be arrested for personal and private cultivation or possession of Cannabis, and that arrests may not be made simply to achieve pre-determined targets without assurance of a crime that will be prosecuted.
No arrests are to be made for personal and private cultivation and/or or possession of cannabis, which activities are not criminal. Furthermore, no arrests of alleged cannabis offenders should be effected merely for the reason to achieve pre-determined targets and without assurance that there is indeed a crime that will be enrolled and prosecuted by the National Prosecuting Authority.
Private space explained
A private space is any space that the public does not have access to as a matter of right, for example:
- a space does not require a physical barrier preventing access to be considered private.
- a person does not need to be the owner of a space for it to be their private space.
- Cannabis is privately possessed if hidden from view when carried in public. The inside of a motor vehicle is a private space.
- Cannabis dispensed by a traditional, cultural, or religious healer in small quantities is privately and personally possessed; and
- more than one person may have ownership rights to personal and private Cannabis.
Spread the news
All members of the South African Police Service are to sign in acknowledgement that they have read and understood this new directive.
This circular must be brought to the attention of all members under your command against their signature and filed as proof that such members familiarised themselves with the content of this circular. Any enquiries in relation to this circular should be directed to Brigadier NF van Graan, at: 082 779 8662 or Brigadier MD Bobie, at: 079 527 3846 of the Division: Legal Services. Alternatively, any member of Legal Services responsible for provincial operational legal assistance may be contacted in this regard.
Disciplinary steps for non-compliance
Members of the SAPS are warned that disciplinary steps may follow if they do not comply with the directive.
Failure of a member to comply with these instructions may result in disciplinary steps.
What does it mean practically?
This directive urges the police to treat people with dignity, to respect their constitutional right to grow and carry Cannabis for personal use in private, not to try and make a case against anyone simply based on the quantity of Cannabis found, and not to arrest people suspected of dealing if they can be summoned to court differently.
Whether this becomes a practical reality is yet to be seen. We can only hope.
Unpacking the directive
Watch this brilliant overview from a legal perspective, brought to us by Fields of Green for ALL.
