everyone is selling Cannabis but is it legal

President Ramaphosa’s talk about Cannabis at this year’s SONA has caused a stir among any and all Cannabis enthusiasts in South Africa. It seemed like our Government is eager to unlock the potential of the plant, as can be seen through the amount of high-level discussions surrounding it and the inclusion of a commercial clause in a Bill that was set out to regulate private use. On the ground, the effect has been clear – more Cannabis is being grown in our country than in a long time. The problem is that all that Cannabis has to go somewhere, and here the boundary between legal and illegal Cannabis is becoming more blurry by the day. So-called licensed Cannabis facilities are increasingly supplying to the illicit market and sales agents shamelessly punt their products to a desperate and ignorant community. An increase in these activities has forced me back to our current legislation and my keyboard, in an attempt to clarify what’s happening.

Legal Commercial Facility Types in South Africa

If we look at legislation, nothing much has radically changed that has been enacted recently. We cover the legal landscape of Cannabis in SA in our Private Cannabis Club: Framework Manual for Set-Up and Management, through a detailed explanation and analysis. The fact remains that there are only three types of Cannabis cultivation allowed in South Africa: Medicinal Cannabis cultivation; Hemp cultivation and private, adult use Cannabis cultivation.

Medicinal Cannabis

According to the Medicines and Related Substances Act, No. 101 of 1976, cultivation facilities may obtain a license from SAHPRA to cultivate medicinal Cannabis. These facilities must comply with various quality management systems, including GlobalG.A.P. and Good Manufacturing Practice, prior being audited by SAHPRA before having their licenses issued. The design of such a facility is very specific and is the most costly part of the start-up process. The specifications of the facility must be in line with its end-goal: to produce medicine. Therefore, the barrier to entry to this specific market is understandably high. Producing medicines is a scientific and controlled process and the same requirements would apply to a cultivation facility that produces medicinal basil oil or any other plant used as an Active Pharmaceutical Ingredient. A fully compliant, legal medicinal Cannabis facility will have a valid license issued by SAHPRA in terms of Section 22C(i)(b) of the Medicines Act. The type of license that is issued impacts on the activity that the facility may undertake with their end-product – some licenses are issued for research purposes (Section 22A), while other allows for the supply of the medicinal Cannabis through the appropriate channels.

Hemp

As of October 2021, Hemp permit applications opened up in South Africa, in line with the Plant Improvement Act, 1976 (Act no 53 of 1976). This regulates the cultivation and production of Hemp which contains less than 0,2% THC, although there is talk of this percentage being raised to 1 or 2%. This process is much simpler and less costly, and require steps such as the registration of premises with the Department of Agriculture, Land Reform and Rural Development; submission of test results indicating the percentage of THC in each yield; varietal listing; and appropriate importing and exporting permits. The Guidelines for Hemp (Low THC Cannabis) for Cultivation for Agricultural and Industrial Purposes clearly indicates that “Cannabis varieties with THC levels more than 0.2% are subject to the provisions of the Medicines and Related Substances Act, 1965 (Act No. 101 of 1965) and the Drugs and Drugs Trafficking Act, 1992 (Act No. 140 of 1992)“. Therefore no cultivation facility with only a Hemp permit may cultivate any high THC plants, for any purpose.

Private, adult use

According to the Privacy Judgement of September 2018, an adult person may “use, cultivate or be in possession of Cannabis in private for his
or her personal consumption in private
“. There is no further active legislation speaking to the quantities that would be considered legal, although the Cannabis for Private Purposes Bill aims to fill that gap. A development of the Privacy Judgement is the formation of Private Cannabis Clubs (PCC), a private, associational body pooling the resources of its members to cultivate Cannabis for its members’ personal consumption. Although there are many PCCs in South Africa, there is still not clarity on its perceived legality by law enforcement and this remains to be seen. The main emphasis of the Privacy Judgement is the specified privacy, meaning that adult use cultivation cannot be for commercial purposes, and therefore, Cannabis that has been grown in private had to have been grown for the personal consumption of an adult person and cannot be sold or bought legally.

When encountering an individual who wants to trade in Cannabis and it seems unclear whether their establishment is legal, the solution is simple: does it fall into one of the three categories above? If yes, then the facility should be considered legal. If no, then you are engaging with someone who is willing to take huge risks by acting outside of the law. The next obvious question is “how do they get away with it?” There are many possibilities, which range from pure luck, to bold ambition and a willingness to take risks, to having the right people in your pocket (or bankie, so to speak). The fact that this is becoming more frequent, doesn’t mean it’s right or worth it. Law enforcement could still clamp down on you and bring serious charges against you. Although it may seem like the race has started, the truth is that very little of it is sanctioned by legislation.

Comments ( 2 )

  • Menesh Rowjee

    When would it be possible to trade?

    • Marleen Theunissen

      Hi Menesh,
      If you read our blog about the Cannabis for Private Purposes Bill, you’ll see that a commercial clause has been included, meaning the Bill – once it’s been gazetted – will allow for trade in Cannabis. Although the design and implementation of legislation can take time, we’re hopeful that it will be possible within the next 2 – 3 years.

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