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8 March 2022

A summary of the legal landscape of the Cannabis sectors in South Africa

The Constitutional Court’s landmark decision concerning the private adult use of Cannabis (the Prince Privacy Judgment) was handed down in September 2018. Two and half years on, it seems apt to take stock of some of the headier developments in South African Cannabis regulation.

Based on the fundamental human right to privacy, entrenched in section 14 of the Constitution, the Prince Privacy Judgment invalidated provisions of the Drugs and Drugs Trafficking Act 140 of 1992 (the Drugs Act), which criminalised the personal cultivation, use and possession of Cannabis in private for purposes of personal consumption in private. The Prince Privacy Judgment also ordered Parliament to legislate the quantities and manners in which consenting adults might lawfully cultivate, possess and consume Cannabis in private. The Cannabis for Private Purposes Bill 19 of 2020 (the Bill), which was subjected to heavy debate in Parliament at the end of 2021, and severe (un)constitutional criticism in the court of public opinion, is Parliament’s attempt at doing so. Pending the amendment of the Drugs Act, possibly to decriminalise dealing in Cannabis, the enactment of the Bill or other legislation, and relevant judicial pronouncements (including the pending High Court case of The Haze Club), the Prince Privacy Judgment still constitutes the primary legal framework for private Cannabis (social) clubs and, more generally, the private cultivation, possession, and consumption of Cannabis by adults in South Africa.

The medicinal Cannabis sector, regulated in terms of the Medicines and Related Substances Act 101 of 1965 (the Medicines Act) has also seen developments. From 2017, the medicines regulator, the South African Health Products Regulatory Authority (SAHPRA), started facilitating the procedure by which licenses to cultivate, manufacture, and distribute medicinal Cannabis products could be obtained. From 2019, the Minister of Health started to render certain products containing the medicinally acclaimed cannabinoid, Cannabidiol (CBD), as Schedule 0 substances in terms of the Medicines Act, i.e. medicinal substances that can be regularly retailed. In 2020, the Minister of Health entirely removed Cannabis, as a plant, from the schedules to the Medicines Act, and down-scheduled the psychoactive cannabinoid, Delta-9-tetrahydrocannabinol (THC), from Schedule 7 to Schedule 6, with certain exceptions, and concretised CBD as a Schedule 4 substance, with certain preparations cemented as Schedule 0. Though many argue that the exclusivity and export focus of the medicinal Cannabis sector prevents it from meaningfully contributing to integrated local economies, these developments are not insignificant, and have paved the way for our medicinal Cannabis sector and the associated registration, licensing and other compliance requirements and standards prescribed in terms of the Medicines Act.

In March 2021 the Department of Agriculture, Land Reform and Rural Development (the DALRRD) spearheaded and published the National Cannabis Masterplan (the Masterplan), which is intended to chart our way to the full liberalisation of South Africa’s inclusive and poverty-alleviating Cannabis economies in the medicinal, adult-use (so-called recreational), food and beverage, and the industrial, low-THC (or Hemp) sectors. The Masterplan is far from perfect. Many criticisms having been justifiably levelled at the few online workshops run by the DALRRD, which has mentioned that it is an evolving policy document.

In early October 2021, the Minister of Agriculture, Land Reform and Rural Development amended the regulations to the Plant Improvement Act 53 of 1976 (the PIA) to make provision for the Hemp permitting, registration and other applicable regimes for the industrial Hemp Cannabis sector. Pursuant to this amendment, the DALRDD released the associated permit application forms and guidelines on its website. In the 10 February 2022 State of the Nation Address, President Ramaphosa explicitly acknowledged the potential of the industrial Hemp sector, promising to review the policy and regulatory framework for industrial Hemp and Cannabis in order to streamline and ease the regulatory permitting and other processes and realise the huge potential for investment and job creation. In any event, the Hemp legal and regulatory framework is online, and the DALRRD is accepting applications for permits. Given the relatively low agricultural costs of complying with agricultural when comparted with, for example, the medicinal sector’s legal requirements and standards, the industrial Hemp sector promises a viable, job- and (hopefully) wealth-creating alternative for many South Africans.

Coupled with the President’s sentiments, it is undoubtably very encouraging that the government is drafting our national Cannabis policy. But many still argue that it is taking too long to roll out into a robust, rational, equitable, inclusive, locally integrated legal and regulatory framework. Moreover, as long as the Drugs Act continues to criminalise dealing in any part of the Cannabis plant, we cannot speak of a meaningful South African Cannabis economy, socially and economically emancipated from oppressive police and enforcement action characteristic of the ongoing prohibitionist era.

Whichever way we look at it, though, the South African Cannabis prohibitionist period is in decay. So if you’re planning to open any sort of establishment that has anything to do with Cannabis, it is vital for you to know, at the very least, what is happening in the legal landscape applicable to your prospective Cannabusiness ideals. Once you have all this information, you can make an informed, strategic and forward plan for your participation in one or more of the Cannabis sectors. After such strategic engagement and business modelling, you might just legally execute your establishment and compliance roadmap, and begin business as a profitable participant in the being and becoming of our South African Cannabis sectors.

– Brett Pollack

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