Jeremy Acton, leader of the Dagga Party. (David Harrison/Gallo)
An applicant in the constitutional court case that decriminalised personal use of marijuana has called on the president not to sign the Cannabis for Private Purposes Bill.
Jeremy Acton, one of the applicants who won the landmark privacy ruling in 2018, wrote to Cyril Ramaphosa last week asking him to reject the bill and amend it — or send it back to parliament.
The National Council of the Provinces passed the bill last month — six years after the court gave the government two years to pass legislation — and is before the president for signing.
It allows people to grow, possess and consume cannabis; limits the amounts they can possess and carry in public and prohibits the sale — or purchase — of the herb without a licence or permit, leaving the creation of a legal framework for commercial cannabis for a later stage.
The sale of cannabis has been illegal in South Africa since 1923 and has remained as such despite the 2018 judgment — and the proliferation of cannabis shops in cities and towns around the country.
All remain theoretically illegal, but are benefiting from the moratorium on arrests for trading that was agreed to last year at the Operation Phakisa appointed by Ramaphosa to put together a cannabis policy for South Africa.
The bill is the first in a series of steps towards this, but Acton says that “as it stands before the president is in violation of the spirit and the latter of the constitutional court judgment”, which found that legislation had violated the right to private use of cannabis.
Acton said the bill attempted to “further erode existing fundamental constitutional rights and existing freedoms enjoyed by the public”.
He urged the president to either amend it before signing it, or to refer it back to the parliament portfolio committee to correct those sections that violate the constitutional court judgment.
Doing so would also “respect and protect those freedoms and rights that already exist post the judgment”.
Acton said the president might be committing contempt of court by signing the bill because it “arises from an order given by the constitutional court”.
“Those who endorse it can be charged with contempt of court should it be signed into law,” he said.
According to Acton, any attempt to regulate cannabis use or possession was “automatically a violation of the right to privacy in the use of cannabis” as “the premise of privacy in use of cannabis precludes any regulation or dictate or policing by the state”.
The state was only empowered by the judgment to prohibit or regulate — and if necessary, police — the commercial sale of cannabis for monetary gain.
In its current form, the Bill is a “malicious piece of legislation” designed to destroy privacy in the use of cannabis by adults by prescribing to the privacy and private decisions of individuals.
The minister attempted to prescribe to people how much they could privately grow or consume by imposing a 600g-at-home and 100g-on-the-road limitation to possession, effectively usurping the right to choose how much they consumed.
“The judgment granted all adults the right to privately determine their cannabis needs, and privately cultivate for those needs, and to privately use the cannabis that is cultivated,” Acton said.
The court had not given the minister this right, but had correctly left this to the discretion of the private adult.
“The state does not prescribe to wine connoisseurs how many bottles of wine they may
possess in their wine cellar, and cannabis users expect the same treatment,” Acton said.
Others active in the industry said that although the Bill fell short of what they wanted, it was a step in the right direction.
Myrtle Clark, one of the applications and director of the cannabis activist group Field of Green For All, said it was likely that the bill would be signed by the president before the 29 May general elections.
Clark said that although the activists had hoped for legislation that embraced full legislation, they would have to live with the bill in its current form.
“The latest version is about as good as it will get, considering that it has taken five years,” Clark said. “We have to accept that this is almost an ‘interim’ bill on the way to full spectrum legislation. It is frustrating, but better than jumping into trade without adequate provisions in place to combat the corporate capture of our weed, which is already happening.”
Lawyer Paul-Michel Keichel said Ramaphosa signing the bill would “take our cannabis regime miles forward, but not to our final destination”.
“The newly-narrowed definition of cannabis means that the criminal law will (or should) no longer bother itself with combatting the cultivation, precession of and trade in hemp while section 1(2) foreshadows that the trade in cannabis will only be illegal if conducted without a legal licence or permit,” he said.
“These things ought to open many doors to innovation, entrepreneurship and lawful investment, we would hope first and foremost to uplifting our rural-dwelling and poor compatriots who have been hardest hit by decades of prohibition.”