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South Africa, Cannabis, The Constitutional Court and important caveats

Many products, available online especially, do not fall within the parameters of the exemption, which makes these products and their sale illegal in SA

by Martha Smit and Roxanne Gilbert. Original article appeared here in Business Day.

A lot of attention has been given to the changes in the SA legislative framework in so far as it relates to cannabis (marijuana). Of extreme importance is an understanding of these changes and being able to differentiate between cultivation for private use and the sale of cannabidiol (CBD) products on the open market.

1. Recreational use 

On September 18 2018, the Constitutional Court ruled in favour of cannabis use by South Africans by declaring that section 4(b) and 5(b) of the Drugs and Drug Trafficking Act (Drugs Act), as well as section 22A(9)(a)(i) of the Medicines and Related Substances Act (the Medicines Act), is constitutionally invalid as it is inconsistent with a person’s fundamental right to privacy.

There is however a caveat: an adult person may only cultivate (or grow) cannabis in a private place for their own consumption. Such person may also possess or use it in private for their own consumption.

The Drugs Act regulates the use, possession and dealing of drugs in SA. Cannabis (including the whole plant or a portion of it) is listed as an undesirable dependence-producing substance in part three of schedule two of the act.

Section 4(b) of the Drugs Act essentially prohibits the use or possession of any dependence-producing substances (including cannabis ), while section 5(b) prohibits the dealing of such substances, unless an exception listed in one of these sections applies.

The Constitutional Court gave parliament 24 months from the handing down of the judgment to rectify the invalid sections in the Drugs Act. The Court, in the interim, ordered that the sections of these acts will be read to say that an adult may use and be in possession of cannabis, for personal consumption, and in private.

By definition, and as contained in the Drugs Act, dealing in drugs remains illegal. By no means can the cannabis-containing products be brought into or cultivated in the country without adhering to the requirements set out in the relevant acts through which proper regulation is ensured.

This legislative change has far reaching results. It directly affects the rights of the person using cannabis in their personal capacity, as well as the rights of the person(s) around them.

Hazy areas

The only change so far since the Court’s decision is an exemption regarding CBD-containing products released by the SA Health Products Regulatory Authority (SAHPRA). Parliament is yet to amend the invalid sections and now has less than a year to do so.

If parliament fails to cure the defects in time, the reading in of the judgment will be made final. There are, however, a number of issues in the judgment that the Court has failed to address. This has left us with a great deal of uncertainty and challenges, which parliament will now have to settle.

If this does not happen, we will see many cases dealing with cannabis rolling through our courts.

Privacy

In the judgment, it refers to “in private” and “in a private place” but neglects to define what exactly these terms mean. The Court made it clear that the use and possession of cannabis is not only confined to a person’s home. Although the Court did not go any further than that, privacy can be extended to your own person, your car, your handbag, etc. This, however, is yet to be clarified.

Quantity

A further issue that requires clarification is the amount of cannabis a person will be allowed to have in their possession and how much they can grow in a private place. After judgment was handed down, the National Commissioner of the SA Police Services issued a directive that provides the police with the discretion to determine whether the cannabis possessed is for personal consumption.

Purchase of seeds

A further concern is access to cannabis seeds. Cannabis remains an undesirable dependence-producing substance. The schedule of medicines contained in the regulations to the Medicines Act confirms that cannabis, the whole plant or any portion or product thereof, is considered a schedule seven medication. This confirms that a seed forms part of a cannabis plant and therefore remains illegal. This begs the question — if a person can grow cannabis in their personal space, will they not be engaging in an unlawful act if they are to sell or purchase seeds for the purposes of growing it in private?

Although a person can grow cannabis in a private place, the means of obtaining the seeds to cultivate remains illegal.

Other issues

The legalisation of cannabis for personal use in SA will create a causal effect in many other areas of the law that parliament must address.

Employment and criminal procedure laws will have to be amended. The National Road Traffic Act regulations need to be revised — provisions will have to be made to provide for a test similar to the “breath analysers” to determine if a person is under the influence while driving. Many other areas of the law, such as regulating the importation and cultivation of the plant and seeds, will require change.

Consideration should be given to the changes and their effect on the Drugs Act relating to the policing aspect in situations where cultivation was not for private use, but aimed at sale.

No directives dealing with any of these issues have been published thus far.

2. Medicinal use 

The Medicines Act plays a pivotal role in how cannabis is cultivated, manufactured, acquired, imported or exported, distributed, supplied, sold and used. Various licences are available to ensure that these activities are in line with legislative requirements, for example, a medical establishment licence or licence to cultivate, manufacture or import cannabis for medicinal purposes.

Since the Court judgment, many South Africans think they can grow cannabis at their homes and sell it, a common misconception. Others are also under the impression that buying CBD oil for personal use is legal. Many of these products, available online especially, do not fall within the parameters of the exemption and are also not registered as medicines, which makes these products and the sale thereof illegal in SA.

The exemption

In May 2019, the health minister completely removed CBD (not cannabis ) as a schedule seven substance, classifying all CBD-containing products as a schedule four substance. The minister created a further exclusion, which allows certain CBD products to be sold over the counter on the open market without a prescription from a medical practitioner.

This will be the case where the CBD-containing product contains a maximum daily dose of 20mg of CBD with an accepted low-risk claim, which only refers to general health enhancement without referring to any specific diseases or symptoms. This includes products containing a tetrahydrocannabinol (THC) percentage of less than 0.001%.

If the CBD products fall within any of the requirements above, it can be sold without being registered as a medicine and can be bought without a prescription.

Conclusion

The Court judgment created several questions relating to different acts and legislation that require urgent review.

CBD oil, when within the parameters of the exemption, can be imported in bulk into SA, provided that the specific licence to cultivate, manufacture or import cannabis is obtained from SAHPRA.

THC remains a section seven substance and requires a specific and regulated approach to be imported into SA , which is done via a section 21 application for a specific patient.

• Smit is Fasken partner in the Life Sciences Group; Gilbert is a  Fasken candidate attorney.

 

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