Children found guilty of trivial offences, including the possession or use of cannabis, may not be incarcerated, the Johannesburg High Court has ruled. Section 4b of the Drug Trafficking Act, in so far as it applied to children, is unconstitutional and a child oriented approach should be followed to deal with drug use, which should include drug awareness, educational programs, treatment and rehabilitation. Regarding drug testing at schools, the South African Schools Act made it abundantly clear that the principal must have reasonable suspicion to test, no criminal proceedings may be instituted, the results must remain confidential, and it only authorised disciplinary proceedings. And yet, evidence suggested that hundreds of learners had been subjected to these tests and 24 had been unlawfully detained.

Dagga growers in Lusikisiki in the Eastern Cape are far from happy that the “holy herb” has been legalised for personal use, saying their businesses will suffer. Now that people are allowed to grow dagga in their own back yards, they would not longer need to buy it from growers. “This might sound strange, but when people were celebrating the legal use of dagga, it was a setback for me as I’m someone who sells it. Now it’s a free-for-all, so who will want to buy it from someone else when they can grow it themselves and smoke it at their own convenience?” he asked. “I have a big garden that most people in urban areas don’t have. So if I plant two hectares of dagga in my garden here for personal use, would that be allowed? There is so much that we still don’t know about this court decision.”

A flourishing dagga industry is high on the agenda of new Eastern Cape premier Oscar Mabuyane, especially in the Pondoland area, where locals have been farming the wisdom herb for a long time. If he has his way, Mabuyane says he intends to formalise the cultivation and trade in dagga which he says would have immense economic benefits for the people in the province. Mabuyane said those who had been growing dagga illegally for years would have to be embraced. “My attitude is that you don’t have to reinvent the wheel, but [we] must affirm those people who have been in the industry formally or informally, and set up cooperatives, formalise them and make them understand that they must work within the law so that we maximise opportunities out of this,” he said.

The prohibition on dagga is the "gateway to harder drug use‚ not the use of cannabis itself"‚ Imperial College Professor David Nutt told the Pretoria High Court. Nutt‚ a psychiatrist and neuropharmacologist is testifying in the trial to have the current ban on dagga use ruled unconstitutional. Johannesburg residents Jules Stobbs and Myrtle Clarke are asking the Pretoria High Court to deem the laws banning the adult use and sale of dagga unconstitutional and thus instruct parliament to make new laws. "The gateway theory is a theory that has very‚ very little in the way of empirical evidence‚" Nutt said. (See also: Is the state trying to lose the dagga case?)

Until 1921 dagga was sold openly by mine storekeepers in the towns and grew wild in much of South Africa. It was banned partly because it was feared that its use would make it more difficult to uphold racial segregation. Its possession and use was criminalised by the colonial regime in 1928 and this was done for political and so called “moral” reasons. The Western Cape High Court held that the relevant provisions in the Drugs Act and the Medicine and Related Substances Act which prohibit the possession and use of cannabis infringed on the right to privacy protected in section 14 of the Bill of Rights. In evaluating the evidence Judge Dennis Davis concluded that the evidence provided by the state to justify the criminalisation of dagga “was singularly unimpressive”.

Despite the far-sighted rulings by Judge Dennis Davis and two colleagues in the Cape High Court, and then the unanimous Constitutional Court, that allowed private use of cannabis, the state of dagga legislation in South Africa remains similar to that of alcohol during US prohibition.These are some of the common consequences: small-scale growers are constantly in skirmishes with the law, poor people end up in prison for selling, dangerous gangs form to enforce some order on the trade outside the law, and high-placed officials in justice administration become enmeshed in corruption, damaging the entire state. Prohibition, which for decades has criminalised people trying to make a meagre living, should end.

Two years ago, the Constitutional Court of South Africa decriminalised the possession and cultivation of cannabis in private by adults for personal private consumption. It was a historic day that left many weed lovers on a natural high. After the long wait for the Cannabis for Private Purposes Bill to be made public, the industry’s hopes and expectations slumped when it was tabled in Parliament on September 1. (The call for comments opened on September 9 and closes on October 9.) According to industry experts, it’s not what is in the Bill that resulted in the anti-climax, it’s how it has ‘completely missed the mark’ by failing to highlight the business opportunities that lay before it.

In recent years several African governments have changed their stance and implemented policies that legalise cannabis cultivation, manufacturing and processing, mostly for the export market. In southern Africa, Lesotho led from the front with South Africa, Zimbabwe, Malawi, Zambia and Eswatini also coming to the party in an effort to capitalise on what has been positioned as a future answer to dwindling foreign currency earnings for crops such as tobacco. What is enticing for these states is the existing size and purported potential of the industry over the next few years. (See also: A Sustainable Future for Cannabis Farmers)

Small-scale cannabis farmers in the rural parts of the Eastern Cape are feeling the pinch of obtaining farming licences. This is particularly difficult for a 27-year-old farmer who has been involved in the cannabis industry for the past four years. Originally from Mcobothini, in Lusikisiki, the farmer has managed to find a secluded area where he plants approximately 500 trees of cannabis annually with plans to expand his production. “Obtaining cannabis farming licences has proven to be more difficult than I thought, but they have promised to come up with a way forward,” he said. He said another problem is that licences are only issued to cooperatives — and not to individuals.

Growing and smoking dagga at home or in private is legal. For now, buying and selling dagga, however, remains against the law. Cape Cannabis Club (C3) gets around this by employing professional growers who do so in a private space on behalf of members who each lease a specifically dedicated area. Members sign an agreement that allows C3 to grow “premium” dagga for them at its facility. The dagga remains the property of the member and, once grown, it’s couriered to her home. Schindlers Attorneys, a law firm in Johannesburg, scrutinised C3 to ensure legality. The firm was instrumental in the 2018 Constitutional Court case which led to the legalisation of the recreational use of dagga.

Various groups protested on the lawns of the Union Buildings over the slow pace and haphazard approach to cannabis law reform and regulation in South Africa. Under the umbrella of the Cannabis Mass Action Committee a memorandum of demands was handed to a representative of the office of The President. Cannabis legalisation and regulation, necessary to unlock the industry and change lives, is “disjointed, unfocused, and taking too long”, it says. In 2018 the Constitutional Court declared that certain sections of the Drugs Act and Medicines Act were unconstitutional and gave Parliament 24 months to fix the defects. Some progress has been made in the drafting of the Cannabis for Private Purposes Bill, but no actual legislation has been passed in four years since the ruling.

Laws that criminalise grow clubs are unconstitutional and infringe on people’s rights to cultivate and use cannabis privately. This is according to a high court application by the director of The Haze Club (THC), Neil Liddell. Liddell and his attorneys launched a high court application. He is turning to the court to determine the legality of THC in light of the Constitutional Court’s 2018 judgment on the cultivation and use of cannabis. THC follows what has become known as the “grow club model”. Members of the club buy their own seeds. After signing up, a member delivers the seeds to be grown and harvested by THC. This model means that the cannabis plant is at all times under the ownership of the member.

Justice and Correctional Services minister Ronald Lamola has published the draft Cannabis for Private Purposes Bill. The bill will give effect to the Constitutional Court judgement that declared some parts of the Drugs and Drug Trafficking Act and Medicines and Related Substances Control Act unconstitutional. In 2018, the Constitutional Court ruled that the use of cannabis is legal for both personal and medical use. However, it is currently still unlawful to use it outside of your private home, as well as buying and selling it. The new draft bill outlines new possession rules for cannabis users at the home as well as for people who wish to cultivate the plant. It also introduces new offences, as well as provisions for people who previously received a criminal record for cannabis possession.

While cannabis is being legalised in many countries around the world, South Africa still finds itself in a state of legislative limbo, with more and more businesses offering “legal weed”. Both medicinal and recreational cannabis are in high demand and growing acceptance has resulted in improved access to the plant and its products. However, despite an eased approach to cannabis in recent years, a “legal grey area” continues to cause widespread confusion in a largely unregulated industry. Meanwhile, as clubs and dispensaries continue to open across the country, raids are occurring and operators are finding themselves at odds with the law. 

No one knows with confidence how many small-scale cannabis farmers there are in South Africa, but the number is large: one organisation estimates 900,000. Millions of people probably depend on income from cannabis. In Pondoland, these growers have been cultivating the plant for over 200 years, with most of their harvest in more contemporary times bound for Cape Town townships and taxi ranks, as well as other South African cities. Pondoland is among South Africa’s least economically developed regions, and dagga is the only cash crop in a subsistence economy. There have been a number of failed efforts to eradicate the plant from the area.

Delays in passing new laws governing the possession and use of cannabis, caused by the Covid-19 lockdown, have placed on hold the development of a different kind of green economy mentioned by President Cyril Rampahosa in his February State of the Nation address. The delays in promulgating the Regulation of Cannabis Bill and additional changes to the Medicine and Related Substances Control Act mean the state will not meet the September 2020 deadline set by the Constitutional Court in the 2018 judgment declaring the prohibition on cannabis cultivation, possession and use unconstitutional. (See also: No legal sales in new cannabis Bill)

The Constitutional Court judgment on cannabis probably made a lot of people happy because, across all sectors of society, people smoke weed and have, until now, been doing so in dark corners, fearful of being arrested. The judgment was clear in how it expanded the view of private use to not being confined only to one’s private dwelling. It remains to be seen whether there will be consensus on what “private use” is. Parliament must provide the clarity that is not in the judgment. Parliament must also call on South Africans to help it imagine a future cannabis industry in the country, before the cannabis farming space is exploited by cartels and private corporates. (See also: Why the ConCourt decision to legalise dagga for private use is a good thing)

In a series of tweets on Sunday, Finance Minister Tito Mboweni uploaded photos of dagga plants growing on his farm in Limpopo, which he explained were occurring there naturally. The law around cannabis in South Africa is complex, after the Constitutional Court declared that private growth and use should be protected by rights to privacy. However, the plant remains a controlled substance according to the statute books. Many commentators have pointed out that a legal cannabis industry could contribute significantly to economic growth in South Africa, with detractors arguing that the plant is a “gateway drug” to more serious drug abuse.

South Africans will be allowed to possess up to 600g of dried cannabis in the privacy of their homes for personal use, but can forget about selling their stash legally any time soon if the new cannabis Bill is passed in its present form. The Regulation of Cannabis Bill, drafted by the ministry of justice, will provide guidelines as to how much cannabis people can grow and possess, but continues to outlaw trading in the medicinal and recreational herb. The Bill was drafted in response to the Constitutional Court judgment in September 2018 that ended the ban on private cannabis cultivation, possession and consumption. The court gave the government two years to revise legislation and create a framework for legal cultivation and possession of the plant.

For generations, people in South Africa's Eastern Cape have made their living growing cannabis. You might expect that as the country moves to legalise the crop, they would be first in line to benefit, but that is not necessarily the case. Cannabis, colloquially referred to as "umthunzi wez'nkukhu," or, chicken shade, is an intrinsic part of many rural communities in Eastern Cape's Pondoland and a vital source of income. "Cannabis is very important to us because it's our livelihood and source of income. Everything we get, we get it through selling cannabis. There are no jobs, our children are just sitting here with us." While cannabis might be a way of life for this community, growing it at this scale is illegal. There are more than 900,000 small-scale farmers in the Eastern Cape and KwaZulu-Natal provinces who have been growing cannabis for years.