The leaked memo from the KZN Provincial Commissioner reaffirms existing regulations, which have been widely criticized for being contradictory and unenforceable, and is likely to cause more confusion amongst police officers because it is not aligned with national guidelines.
Charl Botha of H3 Legal Solutions says Lt Gen Mkhwanazi should be commended “for taking a step in the right direction by seeking to clamp down on illicit cannabis sales and protect communities
from the harms of the black market” but it misses the point.
Botha says that while the illicit trade undermines public safety, deprives the state of revenue, and places legitimate community-based growers and healers at risk, the way KZN SAPS is going about it is likely to create “immediate and serious conflicts of law”.
SAPS Muddled Between Targeting Criminals and Cannabis Being Decriminalized
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“Targeting criminal profiteering is necessary and aligns with the government’s stated ambition to transition cannabis into a regulated, job-creating sector” says Botha. However the KZN circular reverses the progress that Government has made in trying to decriminalize cannabis.
The circular, directed to all senior levels of police in KZN emphasizes that the sale of cannabis and related foodstuffs is illegal and there are no provisions in law for the sale thereof. The circular says there is widespread ‘misunderstanding’ amongst the public that it is legal to buy and sell cannabis, and that a “media release” should be issued as a warning before any further clampdown.
Botha says the Mkhwanazi memo contradicts:
· the National Commissioner’s Directive of 23 August 2023, which imposed a moratorium on arrests for private cannabis possession, cultivation, and use by adults. Under the SAPS Act, a provincial commissioner cannot override a binding national directive. Any instruction inconsistent with the National Commissioner’s guidance is ultra vires (beyond legal authority) and risks unlawful enforcement. This conflict sows confusion among SAPS officers on the ground and undermines the rule of law.
· the Prince Judgment (2018) in which the Constitutional Court emphasised that cannabis reform was about reducing unnecessary criminalisation and aligning law enforcement with rights to privacy, dignity, and autonomy.
KZN SAPS Legal Opinion Undermines Constitutional Rights
Instead, he says, the KwaZulu-Natal circular reverses this progress by:
• Re-asserting criminal enforcement despite the 2023 national moratorium and the Cannabis for fPPA (2024);
• Failing to safeguard private cultivation and use;
• Collapsing the crucial distinction between protected/private use and prohibited/commercial dealing; and
• Exposing adults to arbitrary arrest, the very harm the Court sought to end.
“In effect, the circular undermines the constitutional protection secured by Prince” says Botha
He says the circular also attempts to address provisions in the Cannabis for Private Purposes Act, but fails to do so because the Act itself contains gaps and ambiguities. He says the CfPPA was enacted to give legislative effect to the Prince judgement and establish clearer rules for private cultivation and use, but has set no clear thresholds for “personal use”: The CfPPA refers to “reasonable quantities” but has yet to define enforceable limits, leaving wide discretion to SAPS.
He says the Cannabis Act is ambiguous around “gifting” and community sharing. “The Act is silent on non-commercial transfers, which remain common in rural villages and cultural contexts” says Botha. There is also an over-reliance on provisions of the Drugs Act.
Circular Opens the Way for Further Police Victimization of People
“Certain sections of the Act cross-reference outdated offences under the Drugs and Drug Trafficking Act, reintroducing uncertainty. When combined with the KwaZulu-Natal circular, these flaws become acute:
• Officers may interpret all transfers as “sales,” collapsing the distinction the CfPPA sought to create.
• Rural growers and traditional healers are left without certainty as to whether their community practices are protected.
• Citizens cannot know whether to rely on the 2023 National Directive (moratorium), the CfPPA’s protections, or the KZN circular’s prohibitions.
“The result is legal confusion, arbitrary enforcement, and increased risk of litigation against the State” says Botha, pointing out that the combined effect of the KZN circular and the gaps in the CfPPA are far reaching, particularly for:
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• Rural Growers and Traditional Healers: Particularly in KwaZulu-Natal and the Eastern Cape, small-scale farmers and cultural practitioners face harassment and arrest.
• Rastafarian Communities: Religious and cultural cannabis use remains at risk, despite repeated calls for protection.
From a policing perspective, Botha says the circular will create “confusion within SAPS ranks as officers remain uncertain whether to enforce the national moratorium, the Act, or the provincial circular. This further opens up the risk of exploitation.
KZN Approach to Cannabis Policing May Suffer Same Fate as Edibles Ban
“Ambiguity opens the door to SAPS “protection rackets” and selective enforcement” he says. “There is a cost to the state in terms of wasted resources. False arrests and unlawful prosecutions drain court time, flood the criminal justice system with cases that collapse, and expose the state to civil damages claims. Each wrongful arrest is not only a violation of rights but a financial liability carried by the taxpayer”.
He says the withdrawn “edibles ban” already demonstrated how inconsistent enforcement costs millions in wasted resources. “This circular risk repeats the same mistake” he says. “While the circular is well-intentioned in its focus on illicit sales, it is legally flawed, administratively ultra vires, and constitutionally inconsistent. Its ongoing applicability risks confusion, rights violations, and further waste of scarce public funds on avoidable litigation.”
Botha has written to the Presidency and SAPS, recommnending the circular’s withdrawal in favour favour of a nationally aligned enforcement framework that:
· Targets genuine commercial crime by focusing on organised illicit traders and profiteers, not private sharing or small-scale practices;
· Respects private cultivation and use under Prince and the CfPPA; and
· Provides clarity to SAPS officers and the public alike, preventing contradictory guidance.
Botha says “South Africa urgently needs a centralised, CfPPA-aligned enforcement framework, not fragmented provincial directives that reverse progress, perpetuate harm, and squander taxpayer resources on unnecessary court battles.”
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