In 1923, Prime Minister Jan Smuts's Union government wrote to the League of Nations proposing that "Indian hemp" — cannabis, known to South Africans as dagga — be classified as a habit-forming narcotic.
The campaign was driven by racialised social anxieties and systems of colonial control, with dagga framed as a cause of sexual crimes by African men and its prohibition used as a tool of racial and economic control over black and Indian communities.
Two years later, on 19 February 1925, the Second International Opium Convention, signed in Geneva, brought cannabis under international drug control for the first time — the founding document of a global prohibition architecture that persists to this day. South Africa did not inherit the prohibition. We initiated it.
A hundred years later, a court in Cape Town is being asked to dismantle what Smuts's government set in motion and, in doing so, to model what rational, rights-first cannabis law looks like for the world.
Ras Garreth Prince is back in the Western Cape High Court. The attorney and activist who took the government to the Constitutional Court on the right to grow and use cannabis — and won, with every justice concurring — has returned because Parliament failed to understand what it was asked to fix.
Prince is not asking the court for minor adjustments. He is seeking an immediate halt to cannabis arrests and asking the court to declare the Cannabis for Private Purposes Act constitutionally invalid in its entirety on the grounds that it was incorrectly enacted, failed to emerge from genuine public participation and creates a right to use cannabis while making its exercise impossible for most South Africans.
The court ruled narrowly on privacy and deliberately left parliament a broad canvas to legislate the full suite of rights argued but not ruled on: equality, dignity, the right to earn a living and cultural freedom.
Parliament responded with the smallest possible picture. The Cannabis for Private Purposes Act grants people the right to use cannabis in private, then provides no legal way to obtain it.
Medical cannabis exists behind licensing barriers built for pharmaceutical companies and access is gated behind a doctor's prescription. Hemp regulations exist with a THC threshold that excludes every South African landrace variety by design. People may grow their own cannabis if they have access to a private space, which, for most South Africans living in backyard rooms, informal settlements and urban flats, is what they do not have. The right to cultivate is real for the Constantia homeowner. It is theoretical for the Khayelitsha tenant.
The act never defined "private place" to include where most South Africans live: the communal yard, the shared dwelling, the rented backroom or the informal settlement. The omission is not a drafting oversight. It is a choice. And it is the choice that reveals most clearly who the law was written for and who it was written against.
Indigenous Knowledge Systems smallholder farmers, whose families have grown the plant for generations and who know its genetics, seasons and soils better than any regulator ever will, have no legal market for their crop and no legal route to one. They are not criminals. They are the consequence of a parliament that was handed the opportunity to write world-leading, rights-based cannabis legislation — law that is cognisant of its international treaty obligations while placing South Africa's developmental agenda and its rural poor at the centre — and chose instead to do the least it could get away with.
The problem runs deeper than a missing supply clause. It runs to how the law was made. The act was drafted in a justice department whose institutional instinct was prohibition and rewritten repeatedly, with each revision narrowing rather than expanding the rights at stake.
In June 2023, the presidency convened the Cannabis and Hemp Phakisa, a Sesotho word meaning "hurry up", a government mechanism for accelerating solutions to urgent national challenges, bringing 130 participants to Pretoria. President Cyril Ramaphosa wrote personally to express his confidence in the process. The phakisa resolved 19 foundational policy principles, agreed to remove cannabis from the Drugs and Drug Trafficking Act and committed to regulatory sandboxes to bring indigenous farmers into a legal economy.
The minister of agriculture opened proceedings and left. The highest-ranking police officer in the room was a brigadier. An industry touching more than a dozen government departments — from justice and health to agriculture, trade, environment, science, social welfare and correctional services — was represented by the director general of agriculture. The president wrote a letter. The rest of government sent no one with the seniority, mandate or authority to make a binding decision.
That is not genuine participation in giving effect to a Constitutional Court ruling. It is tokenism and placation. It speaks to a state that has learnt to perform compliance with the rule of law without ever delivering it.
Two and a half years later, cannabis remains in the Drugs and Drug Trafficking Act, the sandboxes were never activated and the Industrial Development Corporation will not fund primary cultivation because it remains entangled in a criminal framework the phakisa promised to dismantle.
As Prince has said of the legislative process, government "took decisions on their own and then reported those decisions to us. That is dictation, not consultation”.
The result is what Canadian appellate courts have called "a legal absurdity": a right to use cannabis with no legal source of supply. The court is being asked to do what the phakisa could not.
The failures are not merely political indictments. They are the constitutional grounds before the court. Prince argues that the act is invalid on three counts: it was incorrectly tagged as a section 75 Bill when its reach across provinces required a section 76 process, meaning the National Council of Provinces never properly deliberated on it; Parliament failed to engage genuinely with submissions from the communities most affected and produced legislation that ignored them, rendering the public participation process constitutionally defective; and the act creates a right to use cannabis while making its exercise impossible for anyone without a legal source of supply. The court is being asked not to reform the act but to strike it down.
The UN Commission on Narcotic Drugs — the principal global forum on drug policy, which held its 69th session in Vienna in March 2026 — reflects a system under increasing pressure to modernise, with a growing shift towards treating drug use as a public health and human rights issue rather than solely a criminal one, and mounting calls to review the international treaty framework, even as member states remain deeply divided.
The issues were recently unpacked at the June 2026 International Cannabis Symposium, hosted at the University of Cape Town under the theme Back to Basics: Creating Foundational Policy and Law for Equitable Global Cannabis and Hemp. Speakers from across Africa, the Americas, Europe and the Asia-Pacific — academics, policymakers, indigenous community leaders, legal practitioners and industry representatives — examined the questions the litigation forces into the open: who cannabis law is written for, who it excludes and what genuinely equitable reform looks like, including the opportunity South Africa's indigenous landrace cannabis represents as a high-value crop in the hands of the rural poor who have grown it for generations.
Progress on safety, efficacy and access to global markets for marginalised communities is welcome. But the uncomfortable truth is that the grey area created by the Cannabis for Private Purposes Act has most benefited the urban cannabis retail sector. Dispensaries, cannabis clubs and private members' associations have stepped into the gap and expanded exponentially, while the rural farmers who cultivated the plant long before any of them existed are left with no demand for their landrace crop and no route to market for genetics that constitute a unique natural heritage and a potential competitive advantage.
The case for acting is not ideological. The UN Conference on Trade and Development (UNCTAD) values the global industrial hemp market at $5 billion (R81bn). A March 2026 study commissioned by the presidency and the Industrial Development Corporation estimated South Africa's domestic cannabis market at R7.3bn today, growing to R40bn by 2040.
Research by Wageningen University's Tijmen Grooten estimates that between 20 000 and 60 000 hectares of landrace cannabis are under cultivation in Mpondoland alone — equal to or greater than Europe's entire hemp production. The Institute for Economic Justice's Inclusive Development in the South African Cannabis Industry found that South Africa's landrace genetics are a genuine competitive advantage in global markets, with hemp creating three to five jobs a hectare. Yet the farmers who hold those genetics have no legal route to participate in the market their crop could anchor. This destroys a development opportunity that the Constitution demands the country pursue.
What would legislation fit for purpose look like? It would start where the Constitution starts, with rights, and build outward from there. It would treat the right to use cannabis in private as what it is: a self-executing constitutional right that requires no licence, permit or state permission. It would guarantee every rights-holder a lawful source of cannabis because a right without access is not a right; it is a fiction.
It would regulate cannabis according to its use rather than by an arbitrary measure of its chemistry imported from a European regulatory system designed for European conditions. It would treat industrial cannabis as what it is in law — an agricultural crop under the agriculture department — but remove it from the criminal framework that continues to render that designation meaningless. It would protect indigenous landrace varieties as the national biodiversity assets they are, held in trust by the communities that have cultivated them for generations.
It would establish a single, coherent act in place of the fragmentation across five pieces of legislation administered by five departments with no common purpose and no meaningful coordination between them. Critically, it would be built with communities from the outset, not presented to them at the end. The specific mechanisms for access, supply and commercialisation should emerge from that process. That is not a weakness. That is how legitimate law is made.
South Africa wrote a Constitution that the world studied. It did so through radical public participation, deliberate inclusion of those most excluded and a willingness to build something genuinely new rather than amend what colonialism left. The country did not reform apartheid's laws piecemeal. It replaced them with something better. The cannabis question deserves the same quality of lawmaking.
The case before the Western Cape High Court is not just about Ras Garreth Prince, the Rastafari Nation Council or the Indigenous Knowledge Systems farmers whose sandbox approval gathers dust in a government drawer. It is a forcing mechanism. The Constitution has a remedy for a Parliament that will not act: courts that will.
Prince went to court in 2018 because Parliament would not move. He is back in 2026 for the same reason. The matter was postponed from its June hearing date, reassigned to a new judge and is scheduled for July 2026. Every postponement is another month of arrests. The question this time is whether the ruling that follows will be narrow enough for Parliament to misread again or comprehensive enough to close the circle that Smuts's government opened a century ago.
South Africa has the genetics, the farmers, the constitutional architecture and the historic obligation to lead. The only thing missing is legislation equal to the opportunity.
Nicholas Heinamann is a regenerative development strategist and cannabis policy architect based in Cape St Francis. He is the chief natural capital officer of Afristar Foundation and was the technical lead and co-author of the Department of Trade, Industry and Competition’s (DTIC) hemp and cannabis situational analysis and country competitive strategy — the technical basis for South Africa’s Cannabis Masterplan. He has been advocating for rights-based cannabis reform since 1996.