The Republic of South Africa has recently introduced the Cannabis for Private Purposes Bill (Working Document – 11 September 2023).
This legislation seeks to address the use, possession, and cultivation of cannabis by adult individuals, all while respecting their right to privacy. This blog post will provide an in-depth look at the key provisions and implications of this bill, with a particular focus on the changes and their implications for existing laws.
Section 1: Definitions and Interpretation
Before delving into the details of the bill, let's start by understanding some important definitions:
Adult Person: An individual who is 18 years or older.
Cannabis: Refers to the cannabis plant in its various forms, whether mature or immature, fresh or dry, or concentrated, as long as it contains a psychoactive component.
Child: A person under the age of 18 years.
Private Place: Any location where the public does not have access as a matter of right.
Public Place: A location accessible to the public.
Use of Cannabis: Encompasses various forms of consumption, such as smoking, eating, or drinking.
Vehicle: As defined in the National Road Traffic Act.
Section 2: Cannabis for Private Purpose by Adult Persons
This section of the bill outlines the rights and restrictions of adult individuals regarding the use, possession, and cultivation of cannabis. Key points to note:
Adult individuals (18 years and older) are allowed to use, possess, and cultivate Cannabis in private places for private purposes.
Restrictions include not using cannabis in the presence of children or non-consenting adults, maintaining a distance of five meters from certain areas, and ensuring no disturbance to others when using cannabis.
Cannabis may be possessed in public places but not used there, and it must not be easily visible to the public.
Section 3: Protection of Children
The bill prioritizes the best interests of children in matters related to cannabis. Highlights of this section include:
Children involved in cannabis-related issues will be dealt with outside the criminal justice system, primarily under the Children's Act or other relevant legislation.
Adults are prohibited from permitting children to use, possess, or cultivate cannabis, with certain exceptions.
Responsible adults must ensure that cannabis is inaccessible to children in their care or supervision.
Section 4: Offences and Penalties
This section outlines various offences and penalties related to cannabis use, possession, cultivation, and dealing, as well as transportation on public roads. Penalties range from fines to imprisonment, depending on the nature of the offence.
The Cannabis for Private Purposes Bill outlines a range of offenses and corresponding penalties related to the use, possession, cultivation, dealing, and transportation of cannabis. These offenses and penalties are designed to regulate and enforce responsible cannabis consumption while maintaining public safety and welfare. Below, we will elaborate on each of these offenses and their associated penalties:
1. Dealing in Cannabis:
Offense: Any person who deals in cannabis is guilty of an offense. "Dealing" includes providing cannabis for consideration, receiving it for consideration, selling, buying, offering for sale, offering to purchase, importing, advertising for sale, exporting, and any other activity facilitating the selling of cannabis.
Penalty: Upon conviction, the offender may face a fine or imprisonment for a period not exceeding 24 months, or both. This penalty is aimed at discouraging illicit commercial activities involving cannabis while allowing for flexibility in sentencing.
2. Permitting a Child to Use, Possess, or Cultivate Cannabis:
Offense: No adult person may knowingly permit a child to use, possess, or cultivate cannabis, except under specific circumstances defined by the law.
Penalty: An adult person who violates this provision may face a fine or imprisonment for a period not exceeding 12 months, or both. This penalty underscores the importance of safeguarding children from cannabis-related activities.
3. Failing to Secure Cannabis from Children:
Offense: Adults in possession of cannabis must take reasonable measures to ensure that cannabis is inaccessible to children under their care or supervision.
Penalty: Failure to secure cannabis from children may result in a fine not exceeding R2,000. This penalty encourages responsible storage and handling of cannabis to prevent access by minors.
4. Failing to Secure Cultivated Cannabis from Children:
Offense: Adults cultivating cannabis must take reasonable measures to ensure that cannabis is inaccessible to children under their care or supervision.
Penalty: Failure to secure cultivated cannabis from children may result in a fine not exceeding R2,000. This encourages responsible cultivation practices that prioritize child safety.
5. Engaging a Child in Cannabis Cultivation or Dealing:
Offense: Any adult person who engages a child in the cultivation of a cannabis plant, whether for consideration or not, may be charged with an offense. However, this provision does not apply to cultivation contemplated in Section 3(2)(b).
Penalty: An offender may face a fine or imprisonment for a period not exceeding 12 months, or both, for engaging a child in cannabis-related activities. The exception in Section 3(2)(b) emphasizes that certain cultivation practices may involve children but remain lawful.
6. Engaging a Child in Cannabis Dealing:
Offense: Any adult person who engages a child in cannabis dealing, whether for consideration or not, is committing an offense.
Penalty: The penalty for this offense is more severe, with an offender facing a fine or imprisonment for a period not exceeding 10 years, or both. This underscores the seriousness of involving children in cannabis distribution.
7. Providing or Administering Cannabis to a Child:
Offense: Adults are generally prohibited from providing or administering cannabis to a child, except when legally allowed for medical purposes.
Penalty: Violation of this provision may lead to a fine or imprisonment for a period not exceeding 12 months, or both, unless medically allowed by law. This protects children from potential harm while allowing for legitimate medical use under appropriate circumstances.
8. Cannabis Transportation on Public Roads:
Offense: Transporting cannabis on public roads in quantities clearly exceeding personal consumption limits is considered an offense. Additionally, contravening or failing to comply with prescribed regulations for transportation is also an offense.
Penalty: The penalties for these offenses vary. Transporting cannabis in excess of personal consumption limits may result in a fine or imprisonment for a period not exceeding five years, or both. Violating transportation regulations may lead to a fine not exceeding R2,000. These penalties aim to ensure responsible transportation practices and deter illegal trafficking.
9. Possession of Cannabis in a Public Place:
Offense: Possessing cannabis in a public place without concealing it from public view is an offense.
Penalty: Offenders may face a fine not exceeding R2,000. This encourages discreet possession of cannabis in public to avoid potentially negative consequences for public order.
10. Using Cannabis in a Public Place:
Offense: Using cannabis in a public place is considered an offense.
Penalty: Offenders may face a fine not exceeding R2,000. This aims to discourage public cannabis consumption, which could disrupt public order or cause discomfort to others.
11. Using Cannabis in the Presence of a Child or Non-Consenting Adult Person:
Offense: Using cannabis in a private place in the immediate presence of a child or non-consenting adult person is an offense.
Penalty: Offenders may face a fine not exceeding R2,000. This provision promotes responsible and private cannabis consumption.
12. Smoking Cannabis in a Private Place near Certain Locations:
Offense: Smoking cannabis within a distance of five meters from specific locations, such as windows, ventilation inlets, doorways, entrances, or places with close proximity to others, is considered an offense.
Penalty: Offenders may face a fine not exceeding R2,000. This discourages disruptive or intrusive cannabis smoking practices near sensitive areas.
13. Non-Prior Conviction Status:
Provision: Importantly, it is highlighted that a penalty imposed for the payment of a fine without an alternative of imprisonment does not constitute a previous conviction as contemplated in Chapter 27 of the Criminal Procedure Act, 1977.
Implication: This provision ensures that individuals penalized with fines only, without imprisonment, do not carry a formal criminal record, promoting rehabilitation and a fresh start.
Section 5: Expungement of Criminal Records
A significant aspect of the bill is the expungement of criminal records for individuals previously convicted of cannabis-related offences based on certain presumptions. This aims to provide a fresh start for those affected by past convictions.
1. Automatic Expungement:
Provision: When a court has convicted a person of a contravention related to cannabis, and that conviction is based on specific sections of existing drug laws, the criminal record containing the conviction and sentence must be expunged automatically by the Criminal Record Centre of the South African Police Service.
Implication: This provision ensures that individuals with past convictions for cannabis-related offenses, under specified sections of the law, will have their records cleared without needing to take additional steps.
2. Application-Based Expungement:
Provision: If a person's criminal record related to cannabis offenses has not been automatically expunged as provided in the previous provision, that individual may apply for expungement. The application must be submitted to the Director-General of the Department of Justice and Constitutional Development in the prescribed form.
Implication: This provision allows individuals with relevant cannabis-related convictions to actively seek the expungement of their records if it hasn't been done automatically.
3. Issuance of Expungement Certificates:
Provision: Upon receipt of the written application for expungement, the Director-General must assess the application. If the Director-General is satisfied that the applicant qualifies for expungement based on the criteria outlined in the law, they will issue a prescribed certificate of expungement.
Implication: This step involves a formal process where the Director-General reviews the application and verifies if the applicant meets the eligibility criteria for expungement.
4. Submission to the Criminal Record Centre:
Provision: The Director-General, after issuing a certificate of expungement, must submit every such certificate to the head of the Criminal Record Centre of the South African Police Service.
Implication: This ensures that the expungement process is carried out by the relevant authorities responsible for maintaining criminal records.
5. Revocation of Expungement:
Provision: In the event that it is discovered that an applicant does not meet the criteria for expungement after a certificate has been issued, the Director-General has the authority to inform the applicant of the intention to revoke the certificate.
Implication: This provision safeguards the integrity of the expungement process by allowing for reconsideration and possible revocation if eligibility criteria are not met.
6. Right to Appeal:
Provision: Individuals who receive notice of the intention to revoke their expungement certificate have the opportunity to provide compelling written reasons within a specified timeframe as to why their record should remain expunged.
Implication: This provision ensures that individuals who may face revocation have an opportunity to present their case and reasons for maintaining their cleared record.
In conclusion, Section 5 of the Cannabis for Private Purposes Bill outlines a comprehensive process for the expungement of criminal records related to cannabis offenses. It aims to rectify past injustices and provide individuals with a clear pathway to erase the stigma associated with cannabis-related convictions, fostering social reintegration and equal opportunities.
Section 6: Regulations
The Minister is empowered to create regulations to govern transportation, application procedures for expungement, certificate formats, and submission of expungement certificates.
Section 7: Repeal or Amendment of Laws
The Cannabis for Private Purposes Bill includes provisions to repeal or amend existing laws, which signifies a fundamental shift in how South Africa approaches cannabis regulation. Here's what has changed and what it means:
Amendment of Drug Schedules: Part II of Schedule 2 of Act No. 140 of 1992 (Drugs and Drug Trafficking Act, 1992) has been amended to remove the item "Dronabinol [(-)-transdelta-9-tetrahydrocannabinol]." This indicates a recognition of the evolving understanding of cannabis compounds.
Removal of Cannabis from Schedules: Part III of Schedule 2 of Act No. 140 of 1992 has been amended to remove the items "Cannabis (dagga), the whole plant or any portion or product thereof, except dronabinol [(-)-transdelta-9-tetrahydrocannabinol]" from the list. This signifies a significant departure from the previous classification of cannabis as a prohibited substance, except for specific components.
Impact: These amendments reflect a departure from the classification of cannabis as a controlled substance and signify a move towards more lenient regulations. It paves the way for the legal use, possession, and cultivation of cannabis for private purposes by adult individuals, aligning with the spirit of the Cannabis for Private Purposes Bill.
Section 8: Short Title and Commencement
The bill is titled the "Cannabis for Private Purposes Act, 2023," and its commencement date will be determined by the President through a Gazette proclamation.
South Africa's Cannabis for Private Purposes Bill represents a significant shift in cannabis regulation, emphasizing the rights of adult individuals while safeguarding the interests of children. The amendments to existing laws signify a departure from the previous strict classification of cannabis and herald a new era of more permissive regulations. As this bill progresses, it will be crucial to monitor its impact on society and the cannabis industry, while ensuring that it achieves its intended goals of privacy and responsible usage.