The ‘Dagga Shops Dealing in Dagga’ guide was passed on to Cannabiz Africa and is understood to have emanated from the NPA’s offices in KwaZulu Natal. We share it here.

The document, which is undated and has no authors’ identity, but is believed to have been used in workshops with prosecutors in the province. Cannabiz Africa has not been able to independently verify the document but understands that the NPA will be issuing a statement on its approach to cannabis soon.

The Guide’s basic message is that Section 21 cannabis transactions are legitimate but that all other sales are illegal unless products are sanctioned by SAHPRA. It suggests that consumers buying from grey zone outlets be dealt with leniently, even though they are breaking the law. It says that illegal retailers should be dealt with harshly as current laws prohibit commercial transaction. But, it appears to endorse the private cannabis club non-profit model.

Although there are many confusing parts of the guide, two points are clear:

• that the NPA still views cannabis as a “dangerous dependence-producing drug” and that ‘drug use is the source of 99% of priority crimes’;

• And that any form of cannabis retail is prohibited unless products are sanctioned by SAHPRA or prescribed under Section 21 of the Medicines Act.

  
  

It says that selling cannabis under the auspices of the Traditional Health Practitioners Act is highly illegal and that the because the plant is “dangerous” it cannot be defined as a traditional medicine. In fact the document is of the view that cannabis has no medical value.

It says that dealing is “not unlawful” if when cannabis is acquired from:

·        a ‘Medical Practioner Phamacist’ (in terms of an oral instruction or prescription ib writing or practitioner acting in his personal capacity???) for medicinal purposes. This is defined as treatment or prevention of a disease or some other definite curative or thereapeutic purpose”

The document says for a successful cannabis dealing prosecution, the NPA has to prove the suspect knew what he or she was dealing with, that there was intention to sell and that a financial transaction took place. To prove ‘dealing’ also necessitated putting a financial value to any cannabis confiscated. Dealing in future will include manufacturing, transportation and supply of cannabis under the new Act even though that is not specified in the Drugs Act.

The document asks the question with this response:Can you arrest a person buying from a shop? Although strictly speaking this does constitute dealing it must be remembered that the act must be interpreted in accordance with the legislature, which intended to draw a sharp distinction between users and dealers. A less restrictive law enforcement attitude to users should thus be taken”.

The document appears to suggest that private cannabis clubs are considered legitimate, but that is confusing. It appears to suggest that private clubs won’t be prosecuted as long as they are not for-profit businesses.

Under the heading, ‘Not Private Clubs’, it says they require paperwork to “prove they are not businesses” and goes on to say:

“A private club is a self-sustaining non-profit that shares the supply chain functions among its members and gives back to the community or health care system through, for example, charity.” This is important for arrest and prosecution purposes (also applicable under the old Act , notwithstanding that the new Act has not yet come into effect”

Part of the confusion is structural. South Africa is in a legal void where the Drugs Act has theoretically been replaced by the Cannabis for Private Purposes Act (CfPPA) in dealing with cannabis transgressions. However, the CfPPA has not yet been promulgated into law and therefore provisions of the Drugs Act still stand. Well, sort of. The maximum jail penalty for dealing in cannabis is 25 years under the Drugs Act, 10 under the CfPPA.

The document suggests that if in doubt, prosecutors should rely on case law when in doubt..

The problem is that case law itself doesn’t help. Take Judge H Slingers verdict on the THC private club case – she found the model to be illegal under the Drugs Act but reserved judgement pending an appeal to the Supreme Court.

However, the THC case was ultimately settled privately, wrapped in a strict confidentiality clause that shed no light on whether the law regards private clubs as legal or illegal.

In the meantime, they remain both.

However, there seems to be grudging acceptance of the model by the authorities, and while SAPS and SAHPRA are reportedly clamping down on ‘grey zone’ outlets openly selling cannabis, it seems that private club owners and members – and consumers buying from ‘grey zone’ outlets, do not have to fear prosecution until there are clearer guidelines.

Cannabiz Africa understands that most cannabis dealing prosecutions in the country are on hold pending more clarity on the regulations to be published in the CfPPA when it finally sees legal daylight.

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