| To: | Mr M Mokulubete |
| Department of Justice and Constitutional Development | |
| Republic of South Africa |
PUBLIC COMMENT: DRAFT CANNABIS FOR PRIVATE PURPOSES REGULATIONS, 2025
I hereby submit my comment on the Draft Cannabis Regulations published in terms of section 6 of the Cannabis for Private Purposes Act, 2024.
Thank you for compiling the Regulations and inviting public comment. I have a few concerns with the Regulations:
Definitions of “cannabis” and “cannabis plant”
When read in conjunction with the definition of “cannabis” in the Act, the definition of “cannabis plant” is unclear.
The definition of “cannabis” in the Act implies that plants in their vegetative state (that is, plants that are not flowering) are excluded from the definition and thereby not defined as “cannabis”.
The definition of “cannabis plant” in the Regulations is ambiguous and a vegetative plant without any flowers can be seen as either “cannabis”, or not, depending on the interpretation.
I recommend that the definition of “cannabis plant” in the Regulations should explicitly exclude plants in their vegetative state.
Arbitrary amounts
It is unclear how the amounts of 750g and 5 plants have been determined. What makes 751g harmful but 750g acceptable?
If a person grows outdoors and has one growing season per year, their harvest must last them a year before they can cultivate more.
Moreover, if a person allows his neighbour to cultivate cannabis in his garden, or cultivates cannabis for his neighbour, how is the 5-plant limit applied?
If a plant is growing and not yet ready to harvest and authorities come to inspect this person’s private cultivation and possession, how will they weigh the plant that is still growing to determine if the 750g has been exceeded? This seems irrational.
Similarly, as cannabis is defined in the Act, it includes “products made therefrom”. If a person mixes 10g of cannabis extract with 1kg of skin cream, that becomes 1kg of “cannabis” and is illegal according to the Regulations. Is a person to be criminalised for using cannabis on their skin?
Additionally, what weighs 749g on one scale may weigh 751g on another scale. What seems to be compliance still constitutes criminal behaviour.
The varied ways in which adults in South Africa use cannabis make it virtually impossible to determine a harmful limit. One person may need several kilograms of cannabis to extract into oil for their own use, while another needs only a few grams a day to smoke. It does not make sense to limit everyone based on the estimated average use of only cannabis smokers.
The limits on possession of cannabis and cannabis plants at any given time are so low as to criminalise the average cannabis user.
Purpose of the Act and infringement of Constitutional right to privacy
The first objective of the Act is to “respect the right to privacy of an adult person to use and possess cannabis”.
Under which circumstances will authorities be allowed to enter a private dwelling to inspect whether the residents comply with the Regulations? Will only cannabis users be subjected to this invasion of privacy or will other citizens also be subjected to home searches in case they may be cannabis users?
The Constitutional Court in the Prince case held that any limitation must be reasonable and justifiable under section 36 of the Constitution.
The Regulations impose arbitrary numerical limits on:
Possession in private and public (regs 2);
Cultivation, irrespective of plant maturity, size, yield or strain (regs 3);
Transportation, on a cumulative daily basis (regs 4).
No evidence or rationale is provided for these limits, nor for treating private and public possession identically. In the absence of justification, these caps constitute an unjustifiable intrusion into private conduct and undermine the very purpose of the Act.
Authority of the Regulations given by the Act
The Regulations add conditions and restrictions that were never intended in the Act. For example, Regulations 5 and 6 create new offences, by specifying the below:
The mandate that cannabis must be stored “in the boot, trunk or at the back or in the enclosed storage compartment” (regs 5(1) and 6(1));
While it makes sense that cannabis should be concealed from public view, it should be up to the person transporting the cannabis to decide how to manage that requirement. The prescribed methods may not be the best in every circumstance.The prohibition on cannabis being “mixed with any other substance” (regs 5(3)(a) and 6(3)(a));
The prohibition on handling, examining or inspecting cannabis during transportation (regs 5(3)(b)
and 6(3)(b));
The prohibition on “revealing” the presence of cannabis to other persons (regs 5(3)(c) and 6(3)(c));
The prohibition on “only the variety or strain” permissible to be transported (regs 5(6) and 6(6)).
These prohibitions are not contemplated by the Act and go beyond regulating conditions of transport.
Delegation of policing powers to private individuals
Regulations 5(4)(b) and 5(5)(b) require drivers to inspect passenger cannabis, verify quantities, and refuse entry where inspection is refused.
This effectively compels private citizens to conduct searches without consent, warrant or safeguards, infringing:
The right to privacy (section 14 of the Constitution);
The rule of law;
Established principles governing lawful searches.
The Act confers no authority to impose such obligations.
Lacking provisions and regulations
Section 2(1)(b) of the Act provides for sharing cannabis with friends and family, per occasion. These family members may be in different parts of the country. The Regulations make no provision for sending a package of concealed cannabis via courier. This does not constitute dealing, and should be explicitly addressed in the Regulations under transport conditions.
Courier companies currently refuse to carry packages containing cannabis for fear of enforcement. This adversely affects the rights of cannabis users who share their harvest between friends or family members.
Conclusion and requested action
The Act is intended to decriminalise and protect private adult conduct. The Regulations, however, re-criminalise such conduct indirectly through technical prohibitions and behavioural controls that go beyond what is necessary to protect public safety or children.
I respectfully submit that the Regulations, in their current form:
Exceed the powers conferred by the Act;
Infringe Constitutional rights, particularly the right to privacy;
Fail the tests of legality, rationality and proportionality.
I request that the Department:
Withdraw or substantially amend Regulations 2–6;
Remove prohibitions unrelated to demonstrable harm prevention;
Align all regulatory limits with constitutional principles and the Prince judgment;
Publish a revised draft with clear justification for any limitations imposed.
I thank the Department once again for the opportunity to submit these comments.