What next for marijuana use in SA after landmark court ruling

There is much more work to be done to design a humane and rational system to regulate cannabis.
One criticism of the private cultivation and use of cannabis model is that it forgoes the possible benefits of a more open, regulated and commercialised system. Picture: Mike Hutchings, Reuters

South Africa’s Constitutional Court has delivered a unanimous judgment that certain parts of the country’s drug laws are inconsistent with the right to privacy. Adults are now allowed to use, possess or cultivate cannabis in private for their own personal consumption.

The court gave some broad guidelines about what this would mean in practice. But it has left the details to Parliament.

This is an important victory for human rights and common sense. It also matters to the almost 300 000 people who are arrested for drug-related crimes each year, mostly for possession of small amounts of cannabis.

But there is much more work to be done to design a humane and rational system to regulate cannabis. Some of the key issues that will need to be addressed include how far privacy extends, exactly what products should be regulated, how non-users will be protected, and what to do about the existing criminal market.

The measure of privacy

Significantly, this change came after a legal challenge in support of the right to privacy. It did not result from a popular vote or from a shift in government policy, based on public health principles. This means the new regulatory system will need to look quite different to two of the existing models in the world.

The first is the commercialised system developing in parts of the US, where businesses sell cannabis in much the same way as alcohol. The other is the medicalised model of Uruguay, where cannabis can be bought without prescription at pharmacies.

Other countries can offer more appropriate comparisons. Jamaica has set its limits at possession of 2oz (56.6g) and the cultivation of up to five plants on any premises. Colombia’s limits are 20g or up to 20 plants. Spain’s limits are rather less clear, and must take into account the circumstances of the case, but plants should not be visible from the street.

An important question is whether South Africa will allow cannabis social clubs – structures for the non-profit production and distribution of cannabis among a closed group of adults. This is the “Spanish model”, which is currently in a precarious legal position at home but enjoys significant expert support, either as a permanent position or as a transitional model while more formally regulated production systems are developed. Such clubs should enjoy the same protection on the basis of privacy, although their regulation introduces additional complications.

Parliamentarians will also have to decide on what substances will be included in the law. Will it extend to hashish (a concentrated resin made from cannabis), cannabis oils, or synthetic cannabinoids? And should the court’s reasoning not be extended to other substances that have been judged by experts to present less harm than alcohol?

Preventing harm to others

The prevention of impaired driving is a reasonable concern. Given the difficulty in physiologically measuring cannabis intoxication, there will be a need to formalise rules on field sobriety testing. Parliament will have to keep abreast of emerging evidence. Clear public messaging should be developed to communicate that cannabis-impaired driving is illegal and risky.

Another concern is the protection of minors. Regular cannabis use does seem to pose risks for adolescent brain development, so it is important that the country works out how best to discourage its consumption among or near children.

Commercialisation question

One criticism of the private cultivation and use model – such as the one in Spain – is that it forgoes the possible benefits of a more open regulated and commercialised system. This includes prospects for purity and potency controls, economic and employment growth, and tax revenues that can be earmarked for programmes to help mitigate cannabis-related risks and harms.

The approach envisioned by the South African Constitutional Court also has the disadvantage that it leaves intact the criminal market that supplies those who don’t meet its restrictions. Not every prospective cannabis user will be willing or reasonably able to grow their own plants or to join a cannabis club. So, there will still be a role for organised criminal groups to reap profits.

And there will still be a need for police enforcement. But it will involve even greater scope for discretion and possible corruption. The country will need to guard against a “net-widening” effect, where policy liberalisation ends up drawing even more people into conflict with the criminal justice system. South Africa will also need to interrogate whether it is still justifiable for people to be jailed for supplying a product that consumers have a right to possess.

Finally, there is the question of the many people who have been criminalised for an activity that is now considered an expression of a basic constitutional right. The court was clear that its judgment was not to be applied retrospectively. However, other jurisdictions – as in the US – have already begun offering pardons on request or discussing whether pardons should happen en masse.

Not a free-for-all, but an excellent start

Those cannabis campaigners and aficionados who were hoping for a Colorado-style boom in consumer options would have been disappointed. On balance, however, this may be a good thing, at least in the interim. Many policy reform experts warn of the dangers of over-commercialisation.

Putting the supply of a risky product in the hands of profit-maximising private interests with little interest in public health is not a recipe for success. In this, the history of alcohol and tobacco control provide a useful lesson.

Anine Kriegler is a researcher and doctoral candidate in Criminology, University of Cape Town.

This article was published with the permission of The Conversation, the original publication can be viewed here


Sort by:
  • Oldest first
  • Newest first
  • Top voted

You must be signed in and an Insider Gold subscriber to comment.


My experience with pothead pixies is that they are on a hiding to nowhere. Last time I owner built anything, the brickies used to arrive “gerook” from the gaauw and build structures rivalling Escher’s best. These I used to kick down- much to the chagrin of Patrice the head honcho. Moving on to work we routinely test all staff on site for drugs and alcohol. Alkies can sober up in 24 but potheads need a lot longer to get the THC out of their systems. Send them home and two strikes and you out. It’s very easy- by reporting to work in such a state you are endangering your colleagues. Zero tolerance. Safety first. Last time I saw Patrice hanging outside the Spar (as they do) he didn’t recognise me for a while but his neck scar and zol smell have him away. Suffering from CRS syndrome like the rest of them. Can’t remember s##t. No way to go in life IMHO.

How do you test for drugs onsite? Just asking.

Nice, don’t engage with the content and rather stereotype a historical incident to highlight your bias. Forget the jobs, economic contribution, medical benefits & other opportunities that the regulation of this commodity may bring. Never mind the billion dollar market in the USA & the Netherlands.

Incredibly ignorant comment from an otherwise intelligent commentator – try read a medical journal instead of relying on the folklore myths of yesteryear. Is anything in your comment provably true? unfortunately not. Consider your selective perception or confirmation bias.

Ask yourself a simple question; why have the most populous states in the US (one of the most heavily regulated healthcare markets in the world) *already* legalised both medical and *recreational* use of cannabis? add Canada and some parts of Europe, with multiple countries in the process of legalisation.

I’m happy to have a constructive discussion but that requires you having basic knowledge beyond “I was told its bad to smoke pot”. Lets not even discuss the hypocrisy of drinking beers, eating processed sugar, food contained in Polyethylene terephthalate plastic, refined fats or burnt food (braai meat, smoked chicken etc).

Well let’s have a constructive discussion then. Growing up in Cape Town I am fully familiar with the ins and outs of weed where majat or DP was a constant companion and one simply had to breathe the air at an average party in the 1980s. Let us assume that it is purely coincidental that the biggest potheads became UCT dropouts and are druggies to this day, only having migrated to harder stuff.

Let us not discuss processed food, sugar, plastics emulating oestrogen, refined fats, burnt food and alcohol as are probably on the same page. Let us not discuss hypocrisy as we would also agree.

Be that what it may, I have researched the topic. When a member of my family started smoking I asked my GP what he thought (while doing minor surgery). His answer was that dope smoke has the same carcinogens as tobacco smoke. In fact it is customary to mix it with tobacco. My GP also noted that ones judgement is impaired using pot and one should not drive nor operate any machinery under the influence. He also noted that there are indications that certain extracts from C. Sativa (THC and CBD) are being tested for medical use such as killing cancer and show promise, but it is early days. He also noted that THC can exacerbate preexisting psychiatric symptoms so those bipolar, depressive etc should leave it alone.

So I did do my own research and found that this is all true.

The main carcinogens in c. sativa common to tobacco smoke are: benzopyrene, benzanthracene, phenols, vinyl chlorides, nitrosamines, vinyl benzene derivatives and reactive oxygen species.

Certainly excluding potheads and alkies from a work site where there are significant hazards (HT furnaces, dangerous reagents, heavy machinery, forklifts etc) has considerable merit.

My take on this is mostly libertarian. You have a right to smoke pot. I have a right to not employ you. You have no right to drive under the influence endangering others, in a similar vein to alcohol. When you land up in hospital riddled with lung cancer, use your own money to pay the oncologist and for the cancer treatment.

appreciate & respect the maturity of the discussion.

Your UCT experience is anecdotal and not relevant – causation vs correlation would show that a wide variety of drivers could have lead to friends dropping out. Anecdotally I know many people regularly using cannabis who are completely functional, my experience isn’t a valid argument for cannabis, as much as your UCT experience isn’t a valid argument against.

Smoking anything [the process of burning] generally contains carcinogens (cigarettes, braai meat, toast). Consuming cannabis should be done through edibles or heat-not-burn methods, and of course not with tobacco. There are very large variety of ways to consume without smoking. So lung cancer/hospital bills argument doesn’t work.

heavy machinery and the like, yes I agree one shouldn’t be high, but this applies to most medication starting with basic painkillers. It’s illegal to not employ based on use (unless *proven* to compromise work ability e.g. heavy machinery) ..unfortunately no evidence that cannabis use compromises white collar work. maybe in time evidence will come out and it will become the same as beers (fine for the weekend but not for Monday morning meetings). I do personally agree that recreational hobbies should be recreational (not mixed with work), but some die-hard fans disagree with me.

THC can exacerbate preexisting psychiatric symptoms – yes, along with most other medication, the incidence here exists but is tiny.

cannabis is *significantly* less harmful than other social relaxers like drinking, smoking. legalising creates jobs, increases tac revenue, reduces public cost of policing, ironically causes reduction in use and more responsible use (see Amsterdam where the criminal novelty is removed) and finally opens medical research centers to explore the benefits.

Interested to see medical benefits coming out (now that legalization is taking hold globally) ..I believe all the ‘downsides’ will be described as: Planes crash but we don’t stop flying ..we take responsible precautions because the benefits outweigh the cost.

Good debate and I’m happy to change my view if new info comes to light.

Aaron Motsoaledi;
Get off your bum and begin the study, cultivating and making of medicinal marijuana. IN EFFECT MR. MINISTER LET THE GOVERNMENT GET INTO THE MARIJUANA INDUSTRY AND LEAD IT FROM THE HEALTH DEPARTMENT??????????????THEY GET PAID FOR DOING IT (CREATING JOBS) AND THEN THE PRODUCT IS SOLD FOR A PROFIT (TO GOVERNMENT) AND THEN THERE’S THE ILLUSTRIOUS V.A.T. Leave it to an Entrepreneur to tell you what to do. However most government officials are political appointee’s and don’t have the business acumen to even do their job.

May bee they’ve seen this as an opportunity as to after EWC, this would be an easy opportunity for the thousands of new up and coming “farmers”, just imagine how much “fun” the new EWC “mengel-slaai” will be on “braai-dag”.

Now is the turn of the pragmatic NGO’s and health bodies to warn of the dangers of marijuana. This ruling applies to the medical few and the lunatic fringe.

Carry on as normal.

please do us a favour and explain with *science* (not myth/rumor/fairy-tales) how these dangers exceed drinking or smoking tobacco?

I’ll be sure to pass your illuminating evidence onto the regulator in the US ..those fringe lunatics must have not done any proper research at any of their world-leading bio-pharmaceutical companies, or at their world-leading research centres in some of the most prestigious global universities;) Canada about to become lunatics too, also most of Europe..

Research facts – not everything society/parents/media told you 10 years ago is true 🙁

Prostitution should follow on the heels of dagga legalization. Legalize all these victimless, morally wrong practices.

This is what I don’t understand: Crime is out of control in South Africa while policing is almost non-existent. There is a link between drug abuse and crime as users need money to support their habit. Many start with marijuana and then graduate to heavier drugs and more serious crimes. Why on earth would we then legalize marijuana and indirectly promote more crime? Surely you get crime under control and then look at things like this. As a country we are mad.

If anything is a gateway drug, it’s alcohol.

@ DatBoi

Exactly !!

@Colson…are you serious ?…or just another clueless calvinist ?

Marijuana is one of the safest healing plants out there – alcohol has killed MILLIONs of ppl over the decades…marijuana: ZERO !

Gateway drug ?…are you in a coma ?..thats like saying ban beers because it could be a gateway to alcoholism !!

Or ban all cars, because of car accidents !!


Ja dominee Colson.

Try join the rest of us in the 21st century.

Would you rather have the police bust the rastas for smoking dope (incidentally, how many rastas have you seen being convicted of violent crime?) or have them focus on actual crimes that are not victimless?

If anything that ‘nagmaalwyn’ leads to more trouble than cannabis.

The comments on this article and others like it have made me realise that Calvinism and the NP really did a number on South Africa, psychologically speaking. Can’t wait for all y’all to be dead and buried. But, hey, let’s have another brandy and coke and beat our wives before we go to bed, amirite.

Sorry but the US is not ahead of the curve on the legalisation of the production, use and sale of marijuana and is not, therefore, the other main model. That would be Canada which, barring any last minute “train smashes” will fully legalise at a federal level on 16 October.

Dwellers in apartment complexes (including children) are already passively smoking the weed as the fumes waft into windows on upper floors.

Can the trustees ban the use of weed in private dwellings? So much for the medicinal benefits of recreational use.

This is hilarious.

Are trustees able to ban cigarettes? Or alcohol abuse. Or wife-beating.

Please put your head on the desk and go to sleep. There’s nothing you can learn here.

I once asked a tenant to leave after receiving a letter from the trustees complaining of domestic violence. This is called obeying the rules and respect for others.

Yes I’m very much awake to what is going on. Did you know that a high percentage of patients in mental institutions are there because they cannot tolerate consumption of mind altering substances.

Better for a doctor to prescribe than some arrogant judge.

Since this is a financial website, I propose the Asset Management industry to consider some new, exciting funds:

How about a Marijuana Tracker fund?

Pot Global ETF…

…Cannabis Flexible Fund

Ganja SA Derivatives!

Now let’s name it the weed sector 😉

The question is…how “smoked” must the fund manager be in order to perform??

Or worse….the term “high” may not always refer to stock valuations!! *lol*

Whatever the rights or wrongs of marijuana smoking are (and they may be no better or worse than tobacco or alcohol), what stands out is that the Captured Court has placed a fuzzy notion of privacy above the Rule of Law.

The Medicines and Related Substances Act created the Medicines Control Council [MCC] which lists cannabis as a Schedule 7 substance, along with heroine, amphetamine, methylenedioxy (ecstacy), methamphetamine (the “meth” in Breaking Bad), mescaline (peyote), cocaine, LSD and more.

If the MCC has erred, surely the correct route is to appeal its decision, based upon medical/social/anthropological research (peyote has been used traditionally for 6.000 years and coca is also a traditional stimulant). However the Captured Court decided rather to trash the legislation, further undermining the Rule of Law.

Having set the precedent for private use of Sch 7 drug, why not peyote, coca/cocaine or any of the others, for “private use”? And if the Constitutional right to privacy outranks the Law, may one commit other “offenses” in private, for instance will Adam Catzavelos have grounds if his “k-word” Whatsapp was in a private group? (Somehow, it seems that the Captured Court will judge differently)

End of comments.



Subscribe to our mailing list

* indicates required
Moneyweb newsletters

Instrument Details  

You do not have any portfolios, please create one here.
You do not have an alert portfolio, please create one here.

Follow us: