South Africa: “Growing and possessing cannabis for personal use does not constitute criminal conduct”

It was in September 2018 that the Constitutional Court of South Africa, the highest court of justice, ruled in favor of legalizing the cultivation of cannabis for private consumption. This court decision was considered historic, first of all because the three accused in the criminal proceedings decided to appeal the sentence, basing the grounds of their accusation on the basis of interference in private life, since they had been accused after an arrest based on a raid. home without a warrant. Thus, by unanimous decision, the judges decided to grant legitimacy to the adult consumer of cannabis for cultivation, as long as it is intended for personal consumption.

On the basis of the initial accusation against the defendants, the support was based on the danger that this action posed to public health. But during the trial, the Judge Raymond Zondo rendered the decision, alleging the following: “It will not be a criminal offense for an adult person to use or be in possession of cannabis in private for his or her personal consumption.” In Portuguese, this decision determines that possession of cannabis for personal use does not constitute criminal conduct. However, the use of cannabis in public and its sale or supply to others remained illegal. Cannabis, what South Africans call "dagga", According to Jeremy Acton, leader of the Dagga party, it should also have been legalized in terms of ownership, provided that it was proved that the owner intended the product for his own consumption. The Non-Governmental Organization The Cannabis Development Council of South Africa (CDCSA) applauded the decision and urged the Government to withdraw the charges against the three defendants acquitted in the Constitution. 

The Court's decision did not stop there, recognizing the need for legislative restructuring, and issued a decision in which it granted 24 months from the date of the judgment for Parliament to change the laws in force, in accordance with the decision handed down in the of effective regulation of this substance in the country. Until this additional work is carried out on behalf of Parliament, adult cannabis users in private would be protected by the decision rendered in this case. The amount of cannabis that each consumer can grow for their own consumption has not been defined, and the Parliament has yet to take a position on this issue. 

Unfortunately, COVID-19 has substantially delayed legislative developments. So far amendments have been made to the Medicines and Related Substances Control Act 101, of 1965, in May 2020, which eased some more restrictive legal precepts.

However, the Drugs and Drug Trafficking Act 140, of 1992, there have still been no developments in terms of the decriminalization of cultivation for own consumption, possession or use, as demanded by the court decision of September 2018. Since then, there have been no changes in terms of intellectual property until now. This is because most of the intellectual property legislation in force in South Africa is based on the prohibition of registration of all products that are against the law or that may constitute an offense or immoral conduct. Assuming that intellectual property is directly linked to trade, the framing of cannabis and cultivation for personal consumption remains unclear. In April 2019, Zimbabwe was the second African country to legalize cannabis for medical purposes, following Lesotho's example. In South Africa, medical cannabis can be prescribed for any health problem, as long as the doctor determines that it can help with the patient's treatment. After the ban in 1922, South Africa decriminalized cannabis in 2018 to allow its use for medical, religious and other purposes.
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* Graduated in Law in 2005, with an internship completed and a member of the Portuguese Bar Association since 2007, Margarida Leitão Ferreira practiced law between Porto, Matosinhos and Vila Nova de Gaia for 15 consecutive years, exclusively in the area of ​​civil, banking and executive law. In 2015, she entered the real estate field and also dedicated herself to the study of cannabis in the legal field and the various challenges that this topic represents. Cannabis has been playing a significant role in your personal and professional journey.

Chronicle originally published in issue #4 of Cannadouro Magazine