Marijuana

Learn about the current law around marijuana and when you are legally allowed to smoke dagga or cultivate it, amongst much more.

General

The use of cannabis for private use was legalised in South Africa in 2018. However, while the private personal use of cannabis has been “decriminalised”, any use of cannabis outside of this strict authorisation is still illegal and punishable by law. Although criminal records are no longer issued for the possession of small quantities of cannabis, Courts will still process members of the public arrested by the police on suspicion of possessing cannabis with the intention to sell it. The same applies to the cultivation of cannabis. 

Note: The Government has been tasked with outlining the protocol for defining quality and quantity in regard to the lawful cultivation and possession of cannabis. However, until this has been done, the Court has merely stated that the police are to apply their reasonable judgment in dealing with separate scenarios related to cannabis.

Legal Acts

1. Private use: 

It is legal for individuals to use cannabis in their home or private dwelling. However, persons living in flats and other forms of sectional/communal accommodations or other close quarters need to be more careful, as what is private use is harder to define in these places. 

As a precaution, people living in sectional title areas must revise their contract, read the rules of their sectional scheme carefully and/or revise their property rights at the Deeds Register to ensure that the places where they are smoking cannabis are deemed to be private property. 

Note: Use of cannabis at the workplace is illegal, however, a person cannot be dismissed if traces of cannabis is found in their blood after a blood test as long as, when they were smoking or using cannabis, it was not in public and was for private use. 

2. Transportation: 

A person is allowed to carry less than 115 grams of cannabis on their person as long as it is intended for private and not public use. 

A person’s vehicle and other personal spaces (such as bags and pockets) cannot be searched by the police without a warrant to do so or unless the police have a reasonable suspicion there is more than 115 grams being transported by that person. If is this the case then they may search and subsequently arrest that person. 

Note: It is likely that a far lesser amount could lead to suspicion and possible arrest if found in one’s possession in public areas and there is a reasonable belied that cannabis is being sold or traded in that area. 

3. Medical Trade: A person or company needs to be registered with the Medicines Control Council in order to be able to sell medicines that contain cannabis. Any company or person that produces or distributes cannabis induced medicines or products without such registration will be deemed to be guilty of dealing cannabis. Note: Please see attached the Medicines Control Council's cannabis cultivation guidelines.

Illegal Acts

1. Dealing: 

The dealing (including sale and mass plantation) of cannabis is currently illegal. If a person is suspected of dealing cannabis, they can be arrested and detained by the police. If the police find a person in possession of cannabis, they will ask questions until they are sufficiently satisfied that it is for personal usage and not for sale. If this is not the case, the police will arrest that person. 

Note: Dealing cannot be assumed unless more than 115 grams of cannabis is found on a person and the person does not have a reasonable justification for it or if there is clear evidence of dealing. 

2. Driving under influence: 

Cannabis has a lasting effect in the blood and this causes trouble to determine whether it has been used privately. A person can be arrested for being intoxicated to such an extent where it impairs their driving abilities (for example, if a person has been suspected of being high or intoxicated due to reckless driving). 

Note: The law has not been definitively outlined in all aspects concerning this matter yet. (This page will be updated as soon as the law has been sufficiently clarified on this matter)

Arrest

Arrest With a Warrant: 

The police may not arrest a member of the public without a valid warrant of arrest. Members of the public may request to see a valid copy of the arrest warrant before being arrested. 

Arrest Without a Warrant: 

The police are allowed to arrest or detain a member of the public without an arrest warrant if:

  • There is a reasonable amount of evidence that leads to the suspicion or confirmation of the selling or dealing of cannabis; or
  • The person is using cannabis in public; or
  • More than 115 grams of cannabis has been found on a person.

When arresting a member of the public, the police have the duty to inform that person of their rights, this includes, among other things, the right to remain silent and the consequences of not remaining silent. If this is not done, the arrest is unlawful.

Search

Search with a warrant: 

The police may search a member of the public (including their belongings), vehicle or dwelling if they have a valid search warrant. 

Note: A member of the public is entitled to only be searched by a police officer of the same sex as them and may refuse being searched if a police officer of the opposing sex tries to search them. 

Search without a warrant: 

The police are allowed to search a member of the public (including their belongings), vehicle or dwelling if they have a reasonable suspicion that there is an excess of cannabis on that person, in their dwelling or in their belongings. Police are expected to knock on the door of a premise for consent before entering. If not consent is provided, the police may still search the dwelling if they have reasonable suspicion that cannabis is being stored or sold or produced. 

If the police search a member of the public's vehicle or person without a warrant and it is found that the suspicion of their search was not based on reasonable grounds, any evidence found during the search will not be accepted in Court. 

Note: A member of the public is entitled to only be searched by a police officer of the same sex as them and may refuse being searched if a police officer of the opposing sex tries to search them.

What to do if You Are Arrested

Be aware that since the constitutional court judgment of 18 September 2018, the police are not allowed to lock you up in a cell until your court appearance. Instead they have to give you a summons with a court date and let you go. 

1. Arrested 

The Police have arrested a person for the dealing / reasonable suspicion of dealing or public usage of cannabis. The person must be reminded of his constitutional rights and most importantly has the right to remain silent. If the police take any of your belongings or equipment, make sure they sign a detailed list of any items that they confiscate from you. 

2. Interview Process 

Tell the truth. Your case will be assigned to an Investigating Officer. They will interview you. Apart from your name and address you don’t have to tell them anything. Anything you say may aggravate the case against you. Don’t be fooled by subtle promises of lesser punishment or getting the court to be lenient. 

Documents 

Notice of rights in terms of the constitution (saps 14a) - Read this through carefully. Make sure all names & dates are correct and sign. 

BAILJ938 - This is only if sufficient proof of dealing has been acquired and the person has been detained in a cell. They may sign on the document and be released on bail until their court appearance. In the BAILJ938 there is also an admission of guilt section that will cost between R300- R500 and will allow the person to walk out free. However, this will implicate the person of a criminal record, which will show up on their Police Clearance Certificate. 

Note: If an admission of guilt has been signed without knowing the consequences, the person has up to 3weeks to retract it. 

Paper 3a: Annexe to written notice to appear in court in terms of section 56 of act 51 of 1977 - This paper explains that, if you pay the fine, you will receive a criminal record. Police will most likely not offer you this paper and it is good for your cause that you ask for it. 

Note: Bail will only apply if there is clear evidence of dealing, otherwise you cannot be put in the cells. 

3. First court appearance: 

You don’t have to have an attorney present at this first appearance in order to get a postponement. Ask the magistrate for more time in order to consult an attorney / apply for legal aid. One of two things can happen-The charges can be dropped, or, this appearance will result in a postponement of the case for about two weeks. Take careful note of your next court date and follow every word that is said in court. 

Once a postponement has been granted contact a lawyer, legal aid, or ‘join the queue’ at fields of green for all. 

Fields of Green for All helpline: 063-174-0938