Important:
This article deals exclusively with South African laws and information relevant to private individuals who cultivate, possess and use cannabis for private purposes.
It does not address pharmaceutical cannabis, which is subject to SAHPRA’s highly regulated pharmaceutical framework, or industrial hemp, which is regulated separately. Those are entirely different legal regimes.
Draft legislation and proposed regulations are deliberately excluded because they are not law.
Section 21 (1)(a)(i) of the Drugs and Drug Trafficking Act 140 of 1992 is declared constitutionally invalid:
- If in the prosecution of any person for an offence referred to -
(a) in section 13(f) it is proved that the accused -
(i) was found in possession of dagga exceeding 115 grams;...
it shall be presumed, until the contrary is proved, that the accused dealt in such dagga or substance;
The provision effectively placed a reverse onus on the accused, requiring them to disprove the presumption of dealing, which is contrary to Section 25(3) of the Constitution:
- Every accused person shall have the right to a fair trial, which shall include the right - ...(c) to be presumed innocent and to remain silent during plea proceedings or trial and not to testify during a trial;
Presumption of dealing based solely on an amount possessed no longer applies in criminal proceedings in South Africa.
Section 21 (1)(c) of the Drugs and Drug Trafficking Act 140 of 1992 is declared constitutionally invalid:
- (c)* in section 13(e) or (f) it is proved that the accused conveyed any drug, it shall be presumed, until the contrary is proved, that the accused dealt in such drug;
Presumption of dealing based solely on an amount possessed no longer applies in criminal proceedings in South Africa.
The Court recognised that criminalising an adult's private cultivation, possession and use of cannabis unjustifiably infringed their constitutional right to privacy.
Sections 4(b) and 5(b) of the Drugs Act read with Part III of Schedule 2 to the Drugs Act and sections 22A(9)(a)(i) and 22A(10) of the Medicines Act read with Schedule 7 of the Medicines Act was declared inconsistent with the right to privacy guaranteed by section 14 of the Constitution.
Parliament was given 24 months to correct the constitutional defects in the two Acts.
Minister of Justice and Constitutional Development and Others v Prince (Clarke and Others Intervening); National Director of Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others v Acton:
Want to understand the constitutional right behind this judgment? Read our Human Rights Day article to learn more about your rights under South Africa's Constitution.
Following the Presidential Cannabis & Hemp Phakisa Action Lab, National Police Commissioner, Lieutenant General SF Masemola, issued a directive to all SAPS personnel, reiterating citizens' rights and police officers' responsibilities in relation to cannabis arrests.
The directive is important because it sets out what SAPS personnel should know about the legal position when dealing with cannabis-related arrests.
It may be worth keeping a printed copy of the directive with you. If you are ever stopped or questioned by SAPS about cannabis, an official SAPS directive setting out the applicable rights and responsibilities may carry considerably more weight than simply trying to explain the law yourself.
In a landmark ruling, the Labour Appeal Court ruled in favour of Bernadette Enever, the employee dismissed by Barloworld for testing positive for THC.
The judgment confirmed that an employer cannot automatically discipline or dismiss an employee for cannabis use in their private time where there is no evidence of impairment or increased workplace risk, particularly in a non-safety-sensitive job.
President Cyril Ramaphosa assented to the Cannabis for Private Purposes Act, creating a statutory framework for the private use, possession, cultivation and transportation of cannabis by adults and prohibiting dealing in cannabis.
NB: The Act has not yet been brought into operation. Until then, the legal position continues to derive from the Constitutional Court's 2018 Prince judgment and the existing legislation as constitutionally modified.
Celucolo Michael Mkhonza was wrongly convicted of dealing in cannabis by a Mpumalanga Magistrates Court. The magistrate presumed him guilty of dealing based on a section of the Drugs and Drug Trafficking Act that had been declared unconstitutional in 1995. The case was sent for review and the judgement set aside.
The case is a striking example of how outdated cannabis law can still cause real harm: Mkhonza was convicted of dealing based on a statutory presumption that had been declared unconstitutional almost three decades earlier.