Following the Cannabis and Hemp Action Lab Phakisa held by the Presidency at the end of June 2023, the Cannabis community has anxiously waited for the new SAPS Directive. Many dubious and click-bait headlines later, the new SAPS Directive was issued by the National Commissioner on 23 August 2023 (the Directive). In less than a week since its public deliverance, the Directive has arguably released more collective trauma in the Cannabis community than any other ‘development’ in almost exactly 5 years, when the Constitutional Court handed down the Prince Privacy Judgment.
‘Development’, because the principles and commands of the concise document, perhaps most notably that—
“No arrests are to be made for personal and private cultivation and/or or possession of cannabis, which activities are not criminal”,
are natural, obvious and direct implications of the Prince Privacy Judgment that have become the war-cries and liberation songs of a community that has continued to suffer unconstitutional, apartheid-style oppression by many SAPS members.
And while it is true that the Directive is not a legal development like a piece of legislation (e.g. the Cannabis for Private Purposes Bill once it is eventually enacted by Parliament as the Cannabis for Private Purposes Act), it does constitute a clear reminder and stern warning to all SAPS members of the constitutional private-use rights held by the Cannabis community. So, yes, it feels a lot like healing; like a fresh and generous smear of Cannabis-infused Vicks cream on the community chest.
The Directive acknowledges SAPS’ “confusion as to the legal position in relation to cannabis”. It discusses the Privacy Judgment and how it constitutionally impacted the text of the Drugs and Drugs Trafficking Act to clearly differentiate between private-use and commercialisation of Cannabis. After the current pharmaceutical licensing and industrial (hemp) permit arrangements are outlined, the Directive clarifies a few critical issues, specifically in relation to the conduct of Cannabis arrests by SAPS members.
We discuss the main points, but feel encouraged to read the Directive in full:
1. Quantity is not an indicator of dealing
The Directive recognises that:
“There is currently no legislation that prescribes what quantities of cannabis may be possessed or cultivated in order to comply with the Privacy judgement”,
admits that:
“There is also no legislation that allows for a presumption of dealing where cannabis quantities above a certain threshold is found in the possession of a person”,
and, therefore, commands that:
“the amount of cannabis found in the possession of a person for private consumption, in private or for cultivation cannot be used by a member to presume that the person is in fact dealing in cannabis.”
The number of plants or quantity of cannabis found in possession of a person has always played a key role in the arrest process, and statements issued by the SAPS on cannabis arrests almost always and somewhat proudly mention the quantities involved. The Directive highlights the difficulty in defining “personal consumption” – indeed, one person may consume one plant per year recreationally, while another requires several plants to make extracts and medicines for personal use.
This statement in the Directive will disarm many officers who use this unscientific and invalid criteria as their sole discretion for effecting an arrest.
2. SAPS must treat suspects with dignity – or face the consequences
It is no secret that SAPS have been unnecessarily harsh towards the Cannabis community in its enforcement of the law. The Directive reminds SAPS members that suspects of Cannabis related offenses, “like any other suspect”, must be treated with dignity and in line with the Bill of Rights.
Additionally, they are requested to consider “all lawful means of securing the accused’s attendance at trial…before resorting to arrest and detention”, meaning that even if a person is found to be involved in criminal activity, they do not need to be arrested and detained. Instead, the SAPS member should take down the suspect’s information for purpose of issuing a summons to be duly served, as per regular criminal procedure.
The Directive underlines the SAPS’ civil liability risk associated with unlawful arrest and detention of suspects. Magisterial court hallways are filled with accused and charged individuals who attend several court dates (or sometimes none) only to have their case struck off the roll. To these ends, the Directive advises SAPS members to liaise with the prosecuting authority and obtain a search and seizure warrant before such activities are carried out.
It also consoling that the Directive reprimands SAPS members; forbidding them from making arrests either:
- “for personal and private cultivation and/or or possession of cannabis, which activities are not criminal”; or
- “merely for the reason to achieve pre-determined targets and without assurance that there is indeed a crime that will be enrolled and prosecuted by the National Prosecuting Authority.”
These reprimands coming as bombshell admissions that SAPS indeed persists in unlawful arrests for private Cannabis use and encourages a quota system for arrests, even since the Prince Privacy Judgment was handed down.
3. SAPS’s definition of “private space”
The Directive lastly sheds some light on the concept of “private space”, for example, that—
- a private space does not need to have a physical barrier preventing access;
- a person does not need to own the space they claim as their private space;
- a private space may include being concealed from view when carried in public – for example, the inside of a car is considered a private space, the inside of one’s pants is another obvious example.
4. Traditional healers possess cannabis privately
Significantly, the Directive addresses traditional, cultural, and religious healers, who use Cannabis as part of their practice. It is expressly acknowledged that cannabis dispensed by a “traditional, cultural or religious healer in small quantities is privately and personally possessed”. While none of these terms are defined, which we suspect will introduce a measure of confusion, traditional healers are not considered part of the commercial trade of cannabis, but rather as an expression of private cannabis.
5. Cannabis can be privately co-owned
Lastly, in a very open-ended provision, the Directive states that “more than one person may have ownership rights to personal and private cannabis.” We feel that this would naturally include the co-ownership of Cannabis by consenting adults who share a private space such as a home. It seems that the SAPS are indicating some sort of understanding that private ownership does not equate to individual ownership. However, if one slightly extends this selfsame logic, we feel that this statement bootstraps the argument for Private Cannabis Clubs, especially the one underpinning Harambe Solutions’ Shared/Collective Model, which leverages both the right to privacy (as per the Privacy Judgment) and its constitutional cousin in the Bill of Rights, the right to freedom of association. This model justifies the safe & responsible, non-profit & collective exercise by members of a Cannabis community of their rights to privately cultivate and consume Cannabis.
This Directive concludes with both an instruction that it “must be brought to the attention of all [SAPS] members … against their signature and filed as proof that such members familiarised themselves with [its] content”, and a stern warning that “[f]ailure of a member to comply […] may result in disciplinary steps.”
While the community (perhaps for the first time actually begins to heal), we still wait for robust laws that liberate the Plant—
– delivering the final death knell to the prohibitionist era of Cannabis in South Africa,
– creating an enabling and inclusive commercial legal and regulatory framework in the adult-use and other Cannabis markets,
and, thereby, its People.
Contact us at info@harambesolutions.co.za to explore the impact of this Directive on your plans to enter or deepen participation in the Cannabis market, whether as a Private Cannabis Club, or more broadly.