South Africa is one of the few jurisdictions outside of North America that has legalized recreational cannabis, albeit in very limited circumstances. In keeping with a country that belongs to the common law tradition, the legalization was not the result of a legislative enactment, but a decision of the South African Constitutional Court (“ConCourt”) in 2018, which partially upheld a decision by a lower court in the Western Cape.
In its decision, the ConCourt found the legal provisions unconstitutional, which made the private use and possession of cannabis as well as the cultivation in a private place for personal consumption a punishable offense. This finding of unconstitutionality was based on Section 14 of the South African Constitution, which enshrines a right to privacy, which includes the right of individuals not to search their people, homes or property, or to have their property confiscated. However, the ConCourt did not extend the reasoning to the purchase of cannabis, as the lower court had done.
ConCourt’s decision called on the South African parliament to repeal the laws in question within two years. On September 1, 2020, the Law on Cannabis for Private Use was introduced. This draft law would codify the legal framework prescribed by the ConCourt decision. Consistent with this decision, the sale of cannabis would remain a criminal offense, with a few limited exceptions.
For medical use, both CBD and THC products generally require a prescription. In the case of THC, a planning exception was made in order to take the ConCourt decision into account. Processed cannabis products with a THC content of 0.001% or less are also exempt to allow the unrestricted sale of certain CBD products. Processed hemp fibers and their products are also excluded, provided they do not contain more than 0.1% THC.
In 2020, the South African Health Products Regulator (SAHPRA) exempted some CBD medicines from this requirement. According to a 2020 SAHPRA announcement, CBD products that:
Complementary drugs that contain no more than 600 mg of cannabidiol per sales pack, contain a maximum daily dose of 20 mg of cannabidiol and represent an overall improvement in health, maintenance of health or alleviation of minor symptoms (low risk) or
Processed products made from raw cannabis raw materials, which are intended for ingestion and contain 0.0075 percent or less cannabidiol, whereby only the naturally occurring amount of cannabinoids in the raw material is contained in the product.
The CBD exemptions do not apply to food. According to SAHPRA, “CBD is not permitted as an additive or ingredient in food”, although only naturally occurring trace amounts are considered acceptable. The SAHPRA guidelines also suggest that cosmetics have the same limitation. This is in line with reports of seizures of imported products.
To sum up, the South African authorities deserve credit for leaving generalizations about CBD behind, a sensible approach that would be welcomed elsewhere. When it comes to recreational cannabis, the ConCourt decision is a promising start, but there should also be legal options for those who are not green-fingered or otherwise unable to grow at home. We’ll keep an eye out for further developments and see if the Rainbow Nation continues to be Africa’s cannabis pioneer.