This report was first published in Healthcare News on 31 August 2024.

In May 2024 the South African President, Cyril Ramaphosa, signed the Cannabis for Private Purposes Act of 2024 into law.

While this represents a step towards realising the rights of bodily autonomy which ought to be enjoyed by everyone, it also highlights the inherent uncertainty in society caused by laws that regulate behaviour that does not infringe upon the rights of others.

The Cannabis for Private Purposes Act (The Cannabis Act) decriminalises the cultivation, possession, and use of cannabis by an adult in a private dwelling. Commercial activities related to cannabis are still not decriminalised. 

Therefore, while it is legal to possess and use cannabis in a private dwelling, selling or buying it is still prohibited.

In the interests of the Rule of Law and its implications of legal certainty and reasonableness, we must mention the peculiar legal environment created by this Act. According to the Act, one can obtain cannabis from another adult without ‘consideration’, meaning without paying that adult or engaging in any exchange that may be considered commercial.

One can use cannabis in a private dwelling, even cultivate it, but obtaining it is impossible unless some generous South African gives away their plant to you for free. A law that seeks to decriminalise the use of something but then subsequently puts further restrictions on obtaining that thing must be said to be contradictory in both substance and form.

Legal contradictions persist

It is still considered a crime, punishable by up to 10 years in prison, a fine, or both to deal in cannabis. This is despite the apparent decriminalisation of the use of cannabis through this law.

A positive development is that cannabis has been excluded from the schedule of the Drugs and Drug Trafficking Act of 1992; this exclusion will hopefully facilitate the revision of other laws such as the Medicines and Related Substances Act of 1965 and the Plant Breeders Rights Act of 1976, enabling industrial use of the plant.

It must be noted that the use, cultivation, and possession of cannabis does not harm the rights of any other person. Therefore, criminalising those activities is unjust. If an activity does not violate the rights of another individual, then it should be regulated by the individual themselves and their non-state institutions.

The use of the power of law to punish those who have not substantively harmed the rights of others creates a situation where the law is contradictory and unreasonable. Since there is no objective reason to have the force of law regulate an activity that harms no one, unreasonableness becomes the basis of operation for many of these laws.

Arbitrary restrictions exposed

The Cannabis Act unreasonably restricts the amount of cannabis plant an adult, not a child, can possess or use. There is no objective basis for limiting the quantity of cannabis that can be cultivated or stored by an individual, except for it being the arbitrary decision of legislators.

Imagine if the state could dictate how much alcohol an adult is permitted to have in their private residence - that would be clearly absurd, and such a law would likely be disregarded and ignored by many. Fortunately, there are no such restrictions in place for alcohol or even cigarettes. However, when it comes to cannabis, there is an arbitrary limit on how much a fully grown adult can consume.

Most telling of the lack of reason in legislation that criminalises non-harmful behaviour is when you compare these laws with one another. The Tobacco Products and Electronic Delivery Systems Control Bill (Tobacco Bill) is in the legislative pipeline and, depending on the ever so important balance of forces in our politics, will pass.

The Cannabis Act permits the smoking of cannabis in a private dwelling except near a window to another property or where the smoke will reasonably affect individuals in a different property. This seems reasonable enough. However, the Tobacco Bill criminalises smoking in the instances mentioned above with cannabis and adds the caveat of prohibiting smoking tobacco in your private dwelling if it also serves as your workplace.

One piece of legislation permits the smoking of one type of drug, whether in a home office or not, while another legislation prohibits smoking another type of drug in a home office. Both activities do not infringe on anyone's rights, both activities are regulated, and yet there is no consistency even in their regulation.

Regardless of one’s views on the use of one type of drug over another, be it recreationally or medicinally, it is a fact that those who consume them do not harm anyone’s rights. It is also a fact that abusing drugs is harmful to one’s health. Yet that is a health problem, not a legal one; if Portugal is anything to go by, treating drug abuse as a health problem rather than a criminal one has its benefits for society.

It is crucial to remember that while we are apprehending, prosecuting, and jailing cannabis dealers, or smokers who smoked in their home offices, we are not prioritising murderers, rapists, or thieves. We need to change our approach and focus more on violent crime if we are to ever have a chance at improving our crime ridden society.

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