Linda Ensor, Business Day
The long journey of legalising the private use of cannabis took a leap forward on Tuesday, 14 November 2023 when the National Assembly adopted the Cannabis for Private Purposes Bill, which has been in the pipeline since 2018.
This article first appeare in Business Day on 14 November 2023.
The ANC, DA, IFP, EFF, NFP and PAC supported the bill, which will now be transferred to the National Council of Provinces for concurrence, while the FF+ and the ACDP opposed it.
Parliament’s justice committee significantly redrafted the original bill tabled by the department of justice, which committee chair Bulelani Magwanishe said in an interview was drafted in an irrational way.
Unlike the original bill, the bill adopted by the National Assembly does not specify the quantities of cannabis plants and dried cannabis that a person may possess for private use. This will be left to regulations the justice minister will draw up and submit to parliament for approval. The regulations will a schedule to the act when it is promulgated.
Neither the commercialisation of cannabis nor its medicinal use is provided for in the bill. Other legislation will be required for this.
DA MP Janho Engelbrecht, who spoke on the bill in the National Assembly on behalf of the DA, stressed that adults will be allowed to use cannabis only in their homes.
“People should bear in mind what this bill is about. It is about cannabis for private use by adults. You are not allowed to buy or sell cannabis, because this still remains a criminal activity with severe consequences. If you want to smoke it you have to grow it, don’t buy it,” he said. Drivers also cannot be under the influence of cannabis.
The bill also provides for the expungement of criminal records of those convicted of possession, use or dealing of cannabis based on presumption.
ACDP MP Steve Swart opposed the bill, pointing to the damaging effects that the use of cannabis has on the development of young brains and the devastating effect it has on communities.
The bill was made necessary by the 2017 judgment by then Western Cape High Court judge Dennis Davis that declared sections of the Drugs and Drug Trafficking Act and the Medicines and Related Substances Act to be invalid and unconstitutional insofar as they prohibit the private and personal use of dagga. Davis said this infringed the right to privacy. He suspended the order of invalidity for two years to allow parliament to amend the acts.
The judgment covered the cultivation and possession of marijuana in a private dwelling and where this possession or cultivation was for personal consumption.
The Constitutional Court confirmed Davis’ judgment in September 2018, noting that marijuana could not be smoked publicly and that dealing is illegal. The court provided a read in provision to ensure that adults would not be guilty of a criminal offence if they used, possessed or cultivated cannabis for personal consumption in private.
The cabinet approved the Cannabis for Private Purposes Bill in 2020 and it was tabled in parliament the same year.
One of the reasons the bill took so long to process was that it had to incorporate the 2022 Constitutional Court judgment in the Centre for Child Law case regarding the processing of children within the criminal justice system in relation to cannabis offences that the court found was unconstitutional.
The bill says that the best interests of offending children must be taken into account in such cases, which must be dealt with in the case of use or possession in terms of the Children's Act and the Prevention and Treatment from Substance Abuse Act, and these acts and the Child Justice Act in the case of dealing.