Cannibas laws, what you should know

Introduction

Part of Njozela Legal’s function as a legal agency is to advise our clients on laws which may affect them. As soon as cannabis was decriminalised in South Africa, a lot of assumptions were made, furthermore, a lot of people are of the view that cannabis is now legal in South Africa. In this article we challenge a lot of assumptions people have with regards to decriminalizing cannabis and we also try to forecast what you can expect in the future. Is cannabis legal in South Africa?

A Constitutional Court ruling in September, 2018, upheld and extended the Western Cape High Court judgment, which found the criminalisation of home use and cultivation of cannabis by adults, as specified in the Drugs Act of 1992 and the Medicines Act of 1965, unconstitutional.

The initial judgement and its confirmation by the Constitutional Court, however, does not promote the legalisation of cannabis use, and it does not affect laws governing the trading, use, or possession of cannabis in public. The Constitutional court gave parliament 24 months from the date of the judgment to bring the ruling in line with South African laws.

It is important to note that there is no court ruling or legislation in South Africa which permits the sale of cannabis in South Africa. Deputy Chief Justice Raymond Zondo in his ruling said:

“If a police officer finds a person in possession of cannabis and he or she thinks it is not for personal consumption, he or she will ask the person such questions as may be necessary to satisfy himself or herself whether the cannabis he or she is in possession of is for personal consumption.” “If having heard what the person has to say, the police officer thinks that the explanation is not satisfactory, he or she may arrest the person. Ultimately, it will be the court that will decide whether the person possessed the cannabis for personal consumption,” Therefore, considering the above, it is safe to say that cannabis is not legal in South Africa, only cannabis which is considered to be for personal consumption has been decriminalised. The sale of CBD products in South Africa

I know what you are all thinking, “well I have seen cannabis products being sold in respectable stores, how can the sale of cannabis be prohibited?” On the 23rd day of May 2019 the then Health Minister Dr Aaron Motsoaledi published in the government gazette a development which has made many assume that the cannabis market is opening up. In the publication you will find that Cannabis products considered to be health supplements are those containing a daily dose of less than 20mg cannabidiol (CBD), as well as those containing less than 0.001% of THC, or less than 0.0075% CBD may be bought and sold relatively freely in South Africa. However, in order to do this, you will require a cultivation license from the South African Health Products Regulatory Authority.

Laws and regulations that are being considered

Currently the only proposed law is the ‘Cannabis for Private Purposes Bill’ which has been published ahead of its submission in Parliament. The bill proposes that singletons may ‘stash’ up to 600 grams of cannabis and if two or more people stay together, they may have 1.2kg’s of cannabis. South Africans (if the bill is enacted) will be allowed to give one another 100 grams of dried cannabis at a time, or 30 seeds, as long as they do so for free. Needless to say, there is no provision which permits the sale or dealing in cannabis products.

How employers have treated the decriminalisation of cannabis

In her ‘Cannabis in the workplace -dismissible or not’ article, Thato Matloko can be quoted saying that, “even though employers are unable to limit what their employees do in their private time, employees are expected and ought to abide by, inter alia, the employer’s disciplinary policy and code and safety standards.” Ms Matloko in her article referred to the Mthembu and others v NCT Durban Wood Chips [2019] 4 BALR 369 case. In that case the CCMA held that employees had to ensure that when they smoked cannabis during their private time it should not result in them reporting for work under the influence thereafter.

The Rankeng v Signature Cosmetics and Fragrance (Pty) Ltd [2020] 10 BALR 1128 showed that there is no scientific method to determine if a person is under the influence of a drug or not. The arbitration went on further to show that employers may however, rely on circumstantial evidence such as obvious signs of physical or mental impairment. Until legislation or regulations comes into effect, we will have to rely on findings in the judiciary to guide us.

Conclusion

The question we get asked a lot is if cannabis will be sold legally over the counter just how it is done in 14 states in the United States of America. The short answer is that no one can accurately predict the future however, our courts and lawmakers have not shown any intention to legalise the sale of cannabis anytime soon.

THE END