The cultivation and personal use of cannabis has once again pitted law enforcement agencies with the 2018 Constitutional Court judgement.
Last month, the Hawks’ South African Narcotics Enforcement Bureau (SANEB), arrested a 42-year-old suspect in Cape Town at a Bo-Swaarmoed farm in Ceres. “The team followed a crime intelligence led information that drugs activity could be taking place inside the farm. The farm was found to contain altogether 171 plants worth an estimated value of R171000.00 as well as dried dagga weighing 79.95kg to the value of R89 834-00” said the police in a statement.
In a paper titled “Decriminalisation of cannabis for personal use in South Africa’ by Emma Lubaale and Simangele Mavundla, both authors argued that the 2018 Constitutional Court judgment left many questions more than answers.
The Constitutional Court judgement said “if a police officer finds a person in possession of cannabis, he or she may only arrest the person if, having regard to all the relevant circumstances, including the quantity of cannabis found in that person’s possession, it can be said that there is a reasonable suspicion that a person has committed an offence under section 40(1)(b) or (h) of the Criminal Procedure Act.”
Lubaale and Mavundla labelled the statement alone as having no prescription on the amount of cannabis
deemed adequate for personal use. “A question, therefore, arises as to what quantity is acceptable. On the one hand, by steering clear of prescribing the acceptable amount, each case is dealt with uniquely and decisions of police officers are arrived at on a case-by-case basis. On the other hand, however, such open-endedness, if not addressed, could be abused as it leaves police officers with unfettered discretion.”
Cannabis legal status in South Africa was for the purposes of medical use and cultivation only. To commercially cultivate cannabis for medicinal purposes, a licence is required in terms of section 22C(1)(b) from South African Health Products Regulatory Authority (SAHPRA) and a section 22(9)(a)(i) permit from the DG of Health.
According to SAHPRA, the license could be used for; cultivating cannabis, manufacturing a cannabis-containing or cannabinoid-containing medicine; importing, exporting or distributing a cannabis-containing product. It was doubtful if SAPS sought advice from SAHPRA inspectors when raiding cannabis plants.