Back in 2020, I reported on South Africa’s legal limbo after a Constitutional Court ruling made cannabis prohibition illegal. What exactly this means for the country has been undefined for the past few years, and South Africa is still working to finalize its Cannabis for Private Purposes bill.
South Africa should have a new cannabis bill soon, which is great, because we’ve been waiting for it since 2018! We’re a publication that focuses on independent coverage of the cannabis and psychedelics fields. You can join in by signing up for the THC Weekly Newsletter, and also get prime access to tons of deals on vapes, edibles and smoking devices. We’ve also got standout offers on cannabinoids, like HHC-O, Delta 8, Delta 9 THC, Delta-10 THC, THCO, THCV, THCP & HHC, which won’t kill your bank account. Head over to our “Best-of” lists to get these deals, and remember to enjoy responsibly!
How it started
Much like many other countries, South Africa instituted laws against cannabis in the early 1920’s. First in 1922 with the Customs and Excise Duty Act, which classified cannabis as a habit-forming drug, and then in 1925 by including cannabis in the country’s Dangerous Drugs list, putting it with the likes of cocaine and opium. Further to that, it was criminalized 100% in 1928 with the Medical, Dental, and Pharmacy Act, which is where it stayed all the way until 2018.
On March 31st, 2017, a judge ruled that it was not constitutional to bar cultivation and use of cannabis for private use. This was done with a justification that this is a non-justifiable personal privacy infringement. A previous case on the matter brought by Gareth Prince about 15 years earlier, focused on the idea of infringement of religious freedoms, but this case was unsuccessful at changing anything.
The 2017 case didn’t include religious aspects, but focused on the privacy rights – or inalienable rights – of the people. The right to privacy is guaranteed under section 14 of the Bill of Rights of South Africa. It states that every individual has the right to lead a private life without government interference. The judge in the ruling made this statement:
“A very high level of protection is given to the individual’s intimate personal sphere of life and the maintenance of its basic preconditions and there is a final untouchable sphere of human freedom that is beyond interference from any public authority. So much so that, in regard to this most intimate core of privacy, no justifiable limitation thereof can take place… This inviolable core is left behind once an individual enters into relationships with persons outside this closest intimate sphere; the individual’s activities then acquire a social dimension and the right of privacy in this context becomes subject to limitation.”
However, as this was a regular court, in order for this ruling to have full effect, it needed to be confirmed by the Constitutional Court. When expected appeals to the decision came in, this was done. In September 2018, the Constitutional Court made a ruling on the matter which confirmed the ruling of the lower court, setting it as law. Some of the included points of the ruling, were the following:
- Cannabis use is permitted by an adult when done in private.
- Cannabis use is not permitted around children, or anyone who does not consent.
- Cannabis is not permitted in public, or for anything beyond personal use.
- Cannabis is permitted for private cultivation so long as its for personal use.
If all this sounds familiar, it’s because it’s a similar scenario to what’s going on in Mexico, where a court ruling created legalization case law, but which still requires a government bill for all particulars. In both cases, it was the use of personal sovereignty laws which led the way to make these changes. In South Africa, the Court ruling set a legal precedent, but it didn’t make clear the specifics of what is allowed. Since that time, draft legislation has come up, but nothing has been passed.
Cannabis for Private Purposes bill
After what has been a very long wait, the government of South Africa is getting closer to releasing formal legislation, in the form of the Cannabis for Private Purposes bill. This bill has been circulating since 2020, and has been updated throughout that time based on the comments of different people and organizations. Current additions were approved by the National Assembly on March 31st of this year, meaning the bill is now in a second round of public meetings.
Some additional points within the South Africa cannabis bill include:
- Recreational cannabis commercial activities.
- Rules for cultivation, possession and supply of cannabis for members of organizations specifically related to religious and cultural purposes.
- Individual privacy rights for adults to use cannabis for medical purposes.
It also defines what a ‘private space’ is. The definition includes: a building, house, room, shed, hut, tent, mobile home, caravan, boat, or any part of one of the above. Essentially, anything that can be closed (or is away from other things), and where the public doesn’t have direct access, is a private space.
Since its still open for public comment, nothing is a done deal yet. The latest to give comments is the country’s largest trade federation, the Congress of South African Trade Unions (Cosatu), which supports the legalization of the plant on all fronts. It submit its comments at the end of May. Though the organization supports legalization measures, it said the current bill is ‘unrealistically bureaucratic and cumbersome’, and needs a lot of reworking.
In fact, it went as far as to say that the legislation is way too restrictive, and doesn’t decriminalize the plant as much as it should. This is highlighted by how the organization sees the issue of cannabis regulation for religious purposes, and its dislike of rules created to monitor how people use cannabis in general.
Regardless of edits, none of this means that South Africa will have a regulated market. That’s one of the big differences between how South Africa and Mexico are handling things. Mexico is expected to have a regulated recreational market, whereas South Africa is legalizing private use and cultivation of the plant only.
How personal sovereignty leads to cannabis rights
The legal change in South Africa was a result of a court case that relied on personal sovereignty laws, which are a part of inalienable rights. Inalienable rights are rights that every human has, and that a government can’t take away. They relate to natural rights, or what some would call God-given rights, and they are not to be altered by governmental laws. Personal sovereignty is the same as self-ownership. This is considered an individual’s right for bodily integrity, and to be the sole controller of themselves. Personal sovereignty, is an inalienable right.
Three countries now have updated cannabis laws due to court cases involving personal sovereignty rights. South Africa’s Constitutional Court case was in 2018, making the 2017 verdict an official one in terms of the country’s laws. Though it doesn’t seek to set up a regulated market, it will allow for the possession, use, and cultivation of the plant privately.
2018 was a popular year for inalienable rights to kick in. Over in Georgia, another Constitutional Court case ended with a verdict that overturned prohibition. The Court ruled that it’s not constitutional to punish the use of cannabis, as it poses no threat to others. It said a punishment for cannabis use is restrictive of personal freedoms, so long as no 3td party is affected. However, Georgia never mentioned needing a bill to further clarify anything, and the country now resides in a weird gray area, where cultivation and buying/selling are illegal, but possession and use are totally cool.
The other example is Mexico, which became the 4th legalized country officially in 2021, when the Supreme Court dropped laws of prohibition for private use, upon the government simply not doing its job. It unofficially became the 4th country back in 2018, when the Supreme Court ruled on the last of five consecutive cases in favor of legal cannabis use and cultivation. It said, as personally developed human beings, we must be allowed to pick our own recreational activities without the government interfering. When the government did not turn in a corresponding bill on time, the Supreme Court went ahead and dropped prohibition laws a year ago. We’re still waiting on the full bill to begin the official sales market.
Conclusion
Truth is, none of the three countries to make legal updates based on constitutional courts, have totally gotten it together yet. Georgia is in a strange legal limbo, and Mexico and South Africa are both waiting on specific bills to pass. We certainly have to wait a bit longer on all fronts, but it looks like South Africa is getting that much closer to a formal legalization/decriminalization with updates to its cannabis draft bill. The question now is, which will be first, South Africa or Mexico?
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