H3 Legal Solutions’ Charl Botha has written to the Government saying that the inclusion of SAPS into the hemp oversight framework stands in direct conflict with the Constitution, the SAPS Act 68 of 1995, the Plant Improvement Act 11 of 2018, established agricultural science, and foundational administrative-law principles.
He says it is “therefore irrational and constitutionally unsound to require farmers cultivating a lawful, non-narcotic agricultural plant to file planting notices or theft-notification reports with SAPS.
Such duties bear no rational connection to SAPS’ criminal-law function and fall outside the institutional boundaries set by section 205 of the Constitution which defines SAPS as a crime-prevention and law-enforcement body, not an agricultural regulator.
Botha says the SAPS Act reinforces this mandate, empowering police only to investigate offences, enforce criminal statutes, and protect the public.
He says the Hemp Permit Guideline (HP-GD-001) goes far beyond what the law permits by requiring farmers to notify the Registrar and “the nearest police station” within 28 days of planting.
“This single clause constitutes administrative overreach of the highest order” he says.
“A guideline cannot override the Constitution, cannot amend legislation, cannot expand SAPS’ statutory powers, and cannot force citizens into policing processes that exist outside the realm of criminal law.
“Yet this clause does exactly that. It converts lawful agricultural activity into an act treated with inherent suspicion, creating a presumption of criminality without evidence, mandate, or constitutional authority.”
Botha says the directive creates an unconstitutional presumption of criminality.
“It implies suspicion where no offence exists, casting lawful agricultural practice under the shadow of policing. By forcing growers into contact with SAPS for a crop expressly defined in the Regulations as anagricultural species (≤2% THC), the guideline collapses the distinction between lawful cultivation and criminal conduct”.
It exposes farmers to policing risk, he says.
“Requiring lawful hemp growers to engage SAPS at the planting stage places them directly in harm’s way. The policing environment is already marked by serious systemic failures: wrongful arrests, routine disregard for Constitutional Court authority, corruption and extortion within narcotics units, and well-documented abuses of forfeiture powers under POCA.(Prevention of Organised Crime Act).
“For small farmers, legacy growers, rural co-operatives, and township producers, compulsory SAPS contact does not create safety; it creates vulnerability.It reopens the door to intimidation, arbitrary arrest, and misuse of criminal-law powers in a context where the activity itself is fully lawful.”
Botha says that for these groups, mandatory SAPS reporting resurrects the same criminalisation framework the reform process was meant to dismantle, creating bureaucratic exclusion through administrative fear.
“This is not an agricultural regulation. It is regulatory intimidation, and it has no place in a constitutional democracy or a modern agricultural economy.”
Botha says the requirement that hemp farmers must notify SAPS of planting activity, as contained in HP-GD-001, cannot stand.
“It has no constitutional mandate, no statutory foundation, no agricultural rationale, and no scientific justification.”
He writes that to restore constitutional legitimacy and ensure alignment with agricultural governance, the following steps need to be urgently taken:
i. Immediate removal of SAPS from hemp planting oversight
All references to police notification in hemp permitting must be withdrawn. Routine oversight of an agricultural species must rest exclusively with agricultural inspectors empowered under the Plant Improvement Act.
ii. Comprehensive review and amendment of HP-GD-001
The guideline must be revised to reflect the correct legal and constitutional framework, ensuring that administrative obligations remain within the boundaries of the relevant statutes and do not expand the mandate of SAPS by implication.
iii. Meaningful public engagement with affected communities
Rural growers, township cooperatives, emerging farmers and legacy cultivators must be included in policy development. Sections 59, 72 and 118 of the
Constitution require participatory law-making; hemp regulation cannot lawfully proceed without it.
iv. Confirmation of the institutional separation between agriculture and policing
Agricultural crops must be regulated by agricultural authorities. Criminal-law structures cannot be placed at the heart of a lawful, low-THCA crop without violating the rule of law, the separation of powers, and basic principles of administrative rationality.
Botha says that, in short, the provision revives the architecture of criminalisation-by-administration, the structure cannabis reform was designed to dismantle.
“No constitutional text, no statutory provision, no scientific evidence, and no administrative principle justifies SAPS involvement in hemp cultivation. It is a regulatory error that undermines trust, suppresses small-farmer participation, and invites future litigation.”
He says a modern cannabis and hemp economy cannot be built on outdated policing frameworks.
“South Africa deserves regulation grounded in science, legality, and constitutional integrity, not the remnants of prohibition disguised as “compliance.”
#
