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Contradictory cannabis laws muddy the waters of legality vs criminality

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Paul-Michael Keichel is an attorney with environmental law firm Cullinan & Associates where he focuses on the legal aspects of cannabis, psilocybin and related natural medicines.

The South African cannabis industry is currently legally hamstrung, because, while one law may have been (incorrectly) interpreted to enable something, another law that contradicts it renders it obviously criminal.

The 2018 judgment of our Constitutional Court extended us all the right to grow, possess and use cannabis in private. It also afforded Parliament two years (long since passed) to amend necessary statutes to accommodate this.

What most people do not know, however, is that Parliament was not mandated to create a cannabis industry and, insofar as you have seen one establishing itself, this is because of political (not judicial) will, presumably influenced by the consistent grumblings of business and civil society. Also, much of what you today see being done openly is entirely illegal and persists only because of a lack of enforcement manpower.

We are now at a fork in the road. Territoriality and contradiction between different government departments have our country in a position where the South African cannabis industry is legally hamstrung — because, while one law may have been (incorrectly) interpreted to enable something, another contradictory law renders it obviously criminal. This article briefly (and necessarily in legal layperson’s terms) addresses the nature of this problem and proposes a clean solution to it.

Our Drugs Act (in terms of which people are charged for possession of and dealing in narcotics) broadly defines cannabis as “(dagga), the whole plant or any portion or product thereof”. If you are not growing, possessing and using cannabis in terms of what the Constitutional Court judgment permits, then the Drugs Act says that you are illegally dealing in cannabis and should be charged criminally, unless you are acting under licence in terms of our Medicines Act (which, incidentally, would also require a licence in terms of our Pharmacy Act).

Therefore, in stepped the South African Health Products Regulatory Authority (Sahpra), which has issued licences (purportedly) in terms of the Medicines Act, for the commercial cultivation, processing, wholesaling, exporting, importing, distribution and dispensing of medicinal cannabis.

But nowhere does the Medicines Act regulate the cultivation of cannabis (nor of any other plant/fungus from which we derive active pharmaceutical ingredients — APIs), given that it, by design, is only supposed to apply when APIs are extracted and then included in formulations intended to be registered as medicines. This means that, technically, when one grows cannabis under license from Sahpra, one still falls foul of the Drugs Act, because one is deemed to be dealing in cannabis under a license that the Medicines Act does not empower Sahpra to issue. Therefore, one is not acting legally in terms of the Medicines Act.

Similar considerations hold true for the so-called “hemp permits” that the Department of Agriculture is now purporting to issue, apparently empowered to do so in terms of the Plant Improvement Act. Growers of hemp, purportedly under licence, would still fall foul of the Drugs Act, because their licences are not (and could never be) in terms of the Medicines Act, while the Drugs Act does not refer (and never has referred) to permits from the Department of Agriculture, Land Reform and Rural Development (DALRRD) under the Plant Improvement Act as excluding its own application.

On a positive note, those who we have spoken to in government appreciate the above conundrum and genuinely seem to want to address it. But, their appreciation of it, alongside their best-stated intentions, with respect, are cold comfort when we know that the SAPS, in the absence of an executive order to cease doing so, continues to make hundreds of cannabis arrests every day, purportedly in terms of the Drugs Act.

If the hearts of those in the Presidency and various relevant state departments are truly honourable, then we need such an emergency order from the Executive, to give everyone the breathing space to clean up the above legal mess, without us lawyers having to divert our attention towards keeping/getting people out of prison.

What then? Well, to try to fix the cannabis conundrum piecemeal (i.e. by amending one act at a time) will, self-evidently, create more problems and contradictions than it will solve.

We thus require an all-encompassing piece of cannabis legislation that stretches the spectrum from personal/private use, through hemp, the sale of cannabis and its products for responsible adult use, up to the most-highly-regulated medicinal use of cannabis APIs.

It must take everything cannabis-related under its influence and include all interested state departments and regulators, while, in one move, removing cannabis from the influence of (i.e. not retrofitting) all acts of Parliament that were never initially designed to regulate what is now being acknowledged as the plant’s countless legitimate uses. DM

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