The contradiction is simple to understand. The Apex Court ruled that it was within an individual’s constitutional rights to consume cannabis privately, and instructed Parliament to draw up the necessary legislation within two years. In other words, cannabis use for recreational purposes is legal within certain guidelines.

The problem of how this would be regulated was left to Government. Instead of doing what it was asked, in other words, legalizing broad adult-use consumption, various state departments went out of their way to do the opposite. Between the Justice, Health, Agriculture, Social Development departments, they contrived to limit public access to cannabis as much as possible and to develop a master plan that ignored the Concourt ruling and championed medical and industrial cannabis.

The result of course is a mess. There are also signs that Government is losing control of the cannabis industry in that it hasn’t given itself the regulations to police the sector. Instead a burgeoning retail ‘grey zone’ has developed in this vacuum, as consumers, excercising their right to consume cannabis privately, have been spoilt for choice with the vast array of cannabis-related products now on offer at thousands of outlets across the country.

Instead of creating jobs and legal revenues, cannabis reform in South Africa has descended, in the words of a senior Government official, into a “crisis of illegality”.

Although purchasing and selling cannabis is strictly illegal, the authorities appear overwhelmed by the scale of the problem and the sector has become a law unto itself. The market, which is turning over at least R5 billion a year – and growing exponentially – is increasingly being fed by SAHPRA licensees who are struggling to move their product overseas. Again this is illegal.

The only way to legally buy cannabis is by being a registered Section 21 patient with SAHPRA, and doctors prescribing the plant are technically bound to source their products internationally. This isn’t happening, and are being supplied by local grow ops. This is illegal. Meanwhile, SAPS continues its ad hoc clampdown on cannabis users and growers, targeting and extorting vulnerable groups. This is illegal.

The height of absurdity in the “grey zone” is that in the eyes of the courts, the status of cannabis private clubs is that they are neither legal nor illegal.

The only solution is for the Department of Trade, Industry and Competition to start defining legality. It should urgently develop a set of guidelines for the cannabis industry, taking into account the reality of the existing situation and then for law-makers to begin drafting an over-arching piece of cannabis legislation that gives strength to Government policy instead of reacting to court judgements. And places the consumer at the heart of the law.

In hindsight, Government would have saved itself a lot of time, trouble and taxpayers’ money, had it listened to the Constitutional Court and legalized regulated adult-use consumption from the get-go.

The deeper irony is that the answer is lying in one of President Ramaphosa’s in-trays.  The work has already been done for him at his initiative.

In June 2023, the Presidency bought together over 100 cannabis stakeholders and pretty much thrashed out an over-arching legal cannabis framework in a week of workshops. The result was the Phakisa Cannabis and Hemp Action Lab document, which is a uniquely Afro-centric approach to the plant.

Among the Phakisa recommendations were to classify all cannabis as ‘industrial’, thereby doing away with the need to define hemp according to western regulations. It also proposed a licensed dispensary system, consumer guidelines, legalization of private clubs and the integration of legacy farmers and protection of landraces. It’s all there. Sitting on a hard-drive in a dark corner.

The sadness is that Government’s ‘sunrise industry’  will remain stuck in the shadow of the Constitutional Court ruling until such time as it allows a regulated adult-use market to develop in South Africa.

That is the heart of the problem. And not that hard to solve.

Perhaps someone at the Presidency could hand over the Phakisa file to someone at Trade and Industry. Then perhaps the Cannabis Master Plan Steering Committee would like to address the situation and provide an action plan and a time table. No meetings of the committee have yet been set up for the year.

For the real state of the nation outlook, read Gareth Prince’s take on the current state of play in the South African cannabis industry here.