On 5 August 2020, the South African Cabinet submitted the Cannabis for Private Purposes Bill 2020 to Parliament. This Bill gives effect to the 2018 decision of the Constitutional Court in Minister of Justice and Constitutional Development and Others v Prince which decriminalised the use, possession or cultivation of cannabis in a private place by an adult. It does so by repealing certain sections of the Drugs & Drug Trafficking Act and the Medicines & Related Substances Control Act. The Bill sets out how an adult may use, possess or cultivate cannabis.
The Bill makes provision for people to consume cannabis in a private place. A private place includes any place where the public does not have the right of access. The Bill also provided clarity on the quantity of cannabis a person may possess in each of the different classes. In terms of the Bill, a person can:
- possess unlimited seeds and seedlings (cannabis plant cultivation material);
- cultivate four flowering cannabis plants per person, or eight flowering cannabis plants per dwelling occupied by two or more adults in a private place;
- possess in private, 100 grams of dried cannabis in a public place;
- possess 600 grams of dried cannabis per person or 1200 grams per dwelling occupied by two or more adults in a private place; and
- possess in private, one flowering cannabis plant in a public place.
According to the Bill, an adult person may provide, or obtain from another person, cannabis, cannabis plants or cannabis cultivating material. However, this cannot be for the exchange of remuneration. The Bill has defined remuneration quite widely as “any form of compensation, gift, reward, favour or benefit”. The Bill stipulates that a person may provide or obtain from another person without remuneration up to:
- 30 seeds or seedlings (cannabis plant cultivation material);
- One flowering cannabis plant; and
- 100 grams of dried cannabis.
Certain criminal offences are also created in terms of the Bill. Should a person be convicted of one of these offences, they may be liable for a fine and/or imprisonment for a period not exceeding 15 years. The most significant offences include:
- Cultivating or possessing more than the prescribed amount of cannabis plants;
- Cultivating a cannabis plant in a public place (this offence does create some uncertainty as how this differs to the one cannabis plant a person is allowed to cultivate in a public place remains unknown);
- Providing or obtaining, without remuneration from another person, more than the prescribed amount of cannabis, cannabis plants or cultivating material;
- Possessing in a public or private place more than the prescribed quantity of cannabis;
- Dealing in cannabis, cannabis plants or cultivating material;
- Possession of cannabis or a cannabis plant in a public place and not concealing it;
- Smoking cannabis in a public place or in the presence of a child or non-consenting adult;
- Smoking cannabis in a vehicle on a public road; and
- Various offences regarding cannabis use around children.
The Bill makes provision for people who have previously been convicted for cannabis related crimes to have their criminal record expunged (or erased) automatically. Specific contraventions qualify for expungement, which are contraventions of:
- section 2(b) of the Abuse of Dependence-producing Substances and Rehabilitation Centres Act - in that the person used or possessed cannabis or the cannabis plant;
- section 4(b) of the Drugs and Drug Trafficking Act - in that the person used or possessed cannabis; or
- any law of the former Republics of Transkei, Bophuthatswana, Ciskei or Venda, or of any former self-governing territory, as provided for in the Self-governing Territories Constitution Act that criminalised the use or possession of cannabis.
If a person’s record is not automatically expunged, they must submit a written application to the Director-General: Justice and Constitutional Development, as set out in the Bill.
The Bill goes a long way to filling the gaps in the law left by the 2018 decision of the Constitutional Court and seeks to answer, in granular detail, what constitutes acceptable ‘personal use’. It does still have a long road to travel before becoming enforceable law. The next steps will be for Parliament to consider the Bill, and the public will also have an opportunity to comment prior to the Bill being signed into law.
Written by Darryl Bernstein, Partner, Rui Lopes, Associate and Kirsty Gibson, Candidate Attorney, Cannabis Industry Group, Baker McKenzie Johannesburg