The draft bill on personal dagga use has been published
by Roi Simpson
As heard on “the Lunchtime News Wrap” on 12 August 2020, with additional information
The draft version of the Cannabis for Private Purposes Bill has been published by Justice minister Ronald Lamola.
On 18 September 2018, the Constitutional Court declared that the use of cannabis is legal for both personal and medical use in the confines of a private space.
It didn’t give effect to any aspect of selling, exchanging, or transporting the plant or its derivatives.
Deciding that is Parliament’s job – and the ConCourt gave Parliament two years to do just that.
The medical and pharmaceutical use of CBD oil – which is cannabis, but doesn’t get you high – was opened up in early 2019.
But the psychoactive part of the plant is THC – which is really what recreational dagga is all about.
That has been left in limbo; awaiting new legislation.
Time is running out
The deadline for Parliament to pass those laws is just 5 weeks away.
That suggests that substantial changes to what’s in the draft Bill are unlikely.
Of course, parliament could ask for an extension, and in light of the disruptions caused by Covid-19 and Government’s response to it – there’s a good chance of them being granted more time.
But let’s assume that’s not the plan, and look at what’s currently on the table.
Overall, the rules are quite conservative
Everything applies exclusively to adults over the age of 18, with harsh penalties for involving children in anything to do with cannabis.
The proposed law states that “an adult person who is in possession of cannabis at any place and who fails to store such cannabis in a secure space that is inaccessible to a child … is guilty of a Class C offence”.
Moreover, the wording goes on to say that “any person who administers cannabis to a child, is guilty of a Class A offence”.
The only exception concerning children and exposure to cannabis is that they are allowed to help with the cultivation of plants.
Smoke in private
You won’t be allowed to smoke in public, near a non-consenting adult (both Class D offences) or a child (Class C) – or too close to the window or door of another place.
Exactly what those distances will be is up to the Minister to decide.
Keep it hidden
The rule of thumb is that everything has to be hidden from public view – even to the point where if you’re transporting plants from one place to another, they can’t be visible. The same applies to dried cannabis.
To “possess in private” for purposes of the law will mean “to keep, store, transport or be in control of cannabis or a cannabis plant, respectively, in a manner that conceals it from public view”.
In a public place, any person who is in possession of cannabis plant, cultivation material (seeds or seedlings), or a cannabis plant that is not concealed from public view, will be guilty of what will be termed a Class D offence.
Cultivation and storage
A “private place” is defined as “any place, including a building, house, room, shed, hut, tent, mobile home, caravan, boat or land or any portion thereof, to which the public does not have access as of right”.
In a private place you can have any number of seeds and seedlings.
But once plants get to 15 cm tall (or wide), the limitations kick in: you’ll be allowed to keep 8 immature plants per adult, to a maximum of 16 per household. Once they mature and start flowering, that limit gets halved.
It appears that a combination of these will be allowed, where one flowering plant equates to two immature ones.
Once you harvest, you can store up to 600 grams of dried cannabis per adult – or 1.2 kg for a household.
The standard for all rules is that you can have five times as much fresh cannabis while its still drying.
Carrying in public
You’ll be allowed to carry up to 100 grams of dried cannabis on your person.
You can also carry 30 seeds or seedlings (or any combination thereof).
And you can give that same quantity away to someone else – provided you get nothing at all in return.
But all of that will have to be hidden.
Any person in a public place in possession of cannabis that is not concealed from public view, will be guilty of a Class C offence.
Selling cannabis remains illegal.
The exchange of cannabis in any form for any kind of remuneration is prohibited.
That’ll be considered dealing – which will mean to provide any form of cannabis “for consideration, receive for consideration, sell, buy, offer for sale, offer to purchase, import, advertise for sale, have in possession for the purposes of sale, export and any other conduct to facilitate selling”.
Dealing will be a Class A offence.
And that’s one point where the Bill is likely to be met with unhappiness.
The Bill does explicitly leave the door open for Parliament to pass other legislation later to allow for that.
But the feel of the proposed laws is that they’ve been crafted unwillingly.
In short, there will be no recreational cannabis industry, and no chance for ordinary people to use it as a cash crop – despite rapidly escalating unemployment.
“Trafficable” and commercial quantities
The divisions between levels of offence are very specific.
All the following plant quantities can be doubled for a household where two or more adults live.
- Four flowering cannabis plants (or 8 immature plants) per adult person is acceptable.
- More than that is a Class C offence.
- Six is a trafficable quantity – a Class B offence.
- Nine is a commercial quantity – becoming a Class A offence.
- In a private place, 600 grams of dried cannabis (1,2 kg for a household) – or 5 times that amount of fresh cannabis – is okay.
- More than that is a Class C offence.
- 800 grams – or 1.5 kg for a household becomes a trafficable quantity (Class B).
- One kilogram – or 2 kg for a household – is a commercial quantity (Class A).
The four new classes of offence have serious consequences
The penalties for a person who is convicted of one of the new classes of offence faces the following punishment:
- Class D: jail for a period not exceeding 2 years or to both a fine and such imprisonment;
- Class C: jail for a period not exceeding 4 years or to both a fine and such imprisonment;
- Class B: jail for a period not exceeding 6 years or to both a fine and such imprisonment;
- Class A: jail for a period not exceeding 15 years or to both a fine and such imprisonment;
That allows an individual living alone who stores a kilogram of dry cannabis, or who simply sells a flowering plant to someone else, to potentially attract punishment on the same level as rape – or even first offence murder.
All previous criminal records relating to cannabis convictions will be automatically expunged.
But there’s no indication of any leniency for those busy serving sentences for cannabis offences.
And the Road traffic Management Act will be updated to include limits on the THC quantities a driver may display.
That’s despite a lack of definitive research on what constitutes impairment.
But it certainly paves the way for using breathalyzers to test for dagga … when the technology becomes available.
It’s still just a draft
The Bill isn’t law yet – and some aspects may change.
In theory, a public participation process must follow, then it must be framed as actual legislation and passed by Parliament – and then signed into law by the President.
But the somewhat anachronistic heavy punishments being proposed don’t speak to flexibility.
As it stands, there’s a belligerent resistance to opening South Africa to the perceived evils of cannabis.
It has a similar Puritanical edge to the approach taken to tobacco and alcohol under lockdown.
Major changes seem very unlikely.
The green door, it seems, will only be opened as far as the constitution demands.