Cannabis dealers are not to be taken into custody and no arrests for personal possession. This is the essence of a SAPS Gauteng legal services communique which in its clumsy way tries to clarify “dagga policing” while the law is in a grey area.
A communique from SAPS legal department says officers must exercise discretion in arresting anyone for “dagga” and even if the quantity appears more than for personal use, the suspect must not be taken into custody. This is because there is no law specifying what quantity of cannabis is allowed for personal use.
A SAPS memo leaked to Cannabiz Africa (Serial 3/2023, dated 15 August 2023, entitled ‘Possession of Dagga’ instructs police not to arrest anyone in possession of cannabis if they are satisfied that it’s for personal use, even if it is in a public space. Extracts of the communique, released by SAPS Gauteng legal department’s Major General Hendricks and Brigadier Mavango to clarify the police line on cannabis, is published verbatim below (Editors note: SAPS wrangled grammar is its own literary genre):
APPLICATION OF APPLICABLE LEGISLATION
“Member must take note that possession of dagga in private by an adult person is not prohibited by law, as well as use by an adult in private and therefore is not a criminal offence. Members must further take note that possession of dagga in public place as long as the possession is in private ie in a private way and the dagga must quantity and must qualify to be regarded for private consumption. As such members when addressing persons found in possession of dagga in a public place they have to rely on their discretion based on reasonable grounds as the is no description in law of how much quantity of dagga can be lawfully possessed by an adult person.
Prior to effecting an arrest members
They have to have due regard to all relevant circumstances
Ask questions to the implicated person and any other person who might assist with information and satisfy themselves whether or not the dagga found was for personal consumption and
Check the quantity of dagga found
Once all the questions are answered and a member is unsatisfactory, he/she can use discretion to make use of written notice or arrest the person. The discretion to arrest must be made in good faith, rationally and not arbitrarily. If the member is satisfied based on reasonable grounds that the quantity of dagga is small enough to qualify as personal consumption he/she may not arrest and seize the dagga. However should make an entry in the pocket book/dairy and state his reasons.
If the member is in doubt as to whether the quantity qualify for personal consumption must not arrest the person, register a criminal case docket and suspect must be brought to court by means of summons or written notice, dagga must be seized, weighed and booked in the SAP13. If prosecutor declines to prosecute dagga must be returned to the person it was seized provided he/she can lawfully possess it.
If the dagga is large quantity that does not qualify for personal consumption, unsatisfactory explanation is provided or where suspect has been dealing arrest should be effected, case docket opened, dagga be seized, weighed and booked in SAPS13. Preliminary investigation must be conducted within 48 hours and suspect be bought before court before 48 hours expires.
Members must note that the Prince judgement made no mention of possession of Dagga by a minor, therefore in law the personal consumption of dagga by a minor whether public or private remain prohibited, therefore it’s a criminal offence. Members when dealing with minors are advised always to take cognisance of Criminal Justice Act, not effect arrest or detention arbitrary, when unsure what step to take seek advice in legal service official in their district.
Display knowledge of the prohibited conduct by law when policing dagga
Acquaint yourself with relevant legislation
Use discretion in good faith, rationally and not arbitrary reasonable and
Consult legal service officer in your district when unsure of which step to take.