In a significant development, the South African Police Service (SAPS) has issued a directive to its members concerning cannabis-related arrests. The directive comes in the wake of the 2018 Constitutional Court judgment that sparked confusion about the legal status of cannabis in South Africa. This blog post aims to shed light on the SAPS directive and the implications it holds for cannabis enthusiasts and the law enforcement community alike.
See the official document here
Understanding the Background:
In 2018, the Constitutional Court of South Africa rendered a landmark judgment in the case of "Minister of Justice and Constitutional Development and Others v Prince; National Director of Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others v Acton and Others." This judgment had far-reaching implications for the legal status of cannabis in the country.
The court clarified that adults in South Africa have the right to possess, use, and cultivate cannabis for personal consumption in private spaces. However, it reiterated that the commercialization or dealing in cannabis remained illegal. To reflect this decision, the definition of "deal in" within the Drugs and Trafficking Act was expanded to exclude personal consumption and cultivation of cannabis by adults in private spaces.
Cannabis remained listed as an undesirable dependence-producing substance in Part III of Schedule 2 of the Drugs and Drug Trafficking Act. Nonetheless, specific licenses or permits were introduced for medical research purposes and the cultivation of low THC cannabis, known as hemp, under certain conditions.
Challenges and the SAPS Directive:
One of the primary challenges arising from the 2018 judgment was the lack of clarity regarding the quantity of cannabis that individuals could possess or cultivate legally for personal use. This ambiguity posed a risk for the SAPS in terms of arresting individuals for cannabis-related offenses that might not result in prosecution. Such arrests could lead to civil claims for unlawful arrest and detention against the police.
The SAPS Directive:
The SAPS directive addresses these concerns and provides clear guidelines for its members:
Treatment with Dignity: The directive emphasizes that individuals suspected of cannabis-related offenses should be treated with dignity and in compliance with the law, including the Bill of Rights in the Constitution.
Exploring Alternatives to Arrest: Before resorting to arrest and detention, SAPS members are encouraged to consider alternative means of securing the accused's attendance at trial, such as summons or written notices.
Consultation with Prosecuting Authorities: Members are advised to liaise with the prosecuting authority to determine whether a case will be enrolled and prosecuted. Additionally, obtaining search and seizure warrants is recommended for operations to ensure judicial oversight.
No Arrests for Personal and Private Cultivation or Possession: Importantly, the directive clarifies that no arrests should be made for personal and private cultivation or possession of cannabis, as these activities are not considered criminal offenses.
Defining Private Space: The directive elaborates on what constitutes a private space, highlighting that a physical barrier preventing access is not a requirement. Inside a motor vehicle can also be considered a private space.
Enforcement and Disciplinary Steps: Failure to comply with these instructions may result in disciplinary steps for SAPS members.
The SAPS directive represents a significant step toward aligning law enforcement practices with the 2018 Constitutional Court judgment on cannabis. It provides much-needed clarity on the legal status of cannabis possession, use, and cultivation for personal consumption in South Africa. This directive not only protects individual rights but also helps avoid unnecessary arrests and legal complications for the police force. As South Africa continues to navigate the evolving landscape of cannabis legislation, this directive serves as a critical reference point for law enforcement agencies and cannabis enthusiasts alike.