While it is now lawful for South African adults to cultivate, use and possess cannabis in private for personal consumption, South Africa has only formalised the commercial trade of cannabis at two dramatically different ends of the spectrum — either as a Western medicine under a medical licence or as an industrial material under a hemp permit.

Both options are prohibitive in their own ways — somewhere between the astronomically high administrative and financial requirements imposed by our medical regime and the arbitrarily low 0.2% THC threshold by which “hemp” is defined, the original indigenous custodians of South Africa’s cannabis find themselves unable to derive any kind of financial benefit from its trade.

Simply put, the cannabis which has been, and still is, customarily traded in South Africa — the cannabis upon which the livelihoods of hundreds of thousands if not millions of South Africans depends — is high-THC cannabis which is not cultivated, collected, stored, distributed, used or traded in accordance with the Medicines and Related Substances Act (Medicines Act) and is cannabis which presently has no legal route to market in South Africa.

From a legislative perspective, the reason for this is the interplay between our Drugs and Drugs Trafficking Act (Drugs Act) and the Medicines Act.

The Drugs Act imposes a blanket ban on the trade of cannabis, in all forms, for any purposes other than medicinal purposes under the Medicines Act. The Medicines Act also, independently of the Drugs Act, limits the trade of cannabis by scheduling THC and CBD, even while they are contained in raw plant material, unless the raw plant material contains 0.2% or less of THC and is intended for industrial purposes.

Therefore, in order to pave the way for new non-Western medicinal uses and trades of high-THC cannabis, the schedules in both the Medicines Act and the Drugs Act must be amended.

To sever out these additional uses and trades from the limitations imposed by the Drugs Act and the Medicines Act, we need a new and focused “Cannabis For All Purposes Act” which defines and consolidates all such further uses and trades of cannabis. This would enable our legislature to achieve the severing by simply referring to the new act as an exclusion in the scheduling of both the Drugs Act and the Medicines Act.

Furthermore, a single plant that can be used for spiritual, medicinal, industrial, agricultural and recreational purposes all at once cannot hope to be shoehorned into a pre-existing legislative framework that was developed largely — if not entirely — post-prohibition.

The question that has yet to be answered is one of standards, ie what standards, if any, ought to be imposed on indigenous communities to enable them to benefit from trading in cannabis?

Core considerations in this regard are that, following the 2018 Cannabis Judgment, all adults can cultivate, possess and use cannabis without adhering to any standards whatsoever, and that the communities in question have been able to use and trade cannabis over the course of centuries with little to no harm to their users.

Stemming from these considerations, we posit first that any regulation of the cannabis-related affairs of our indigenous communities ought to be entirely non-invasive inasmuch as use and trade of cannabis within these communities are concerned.

Second, we posit that the regulation of the use and trade of indigenous cannabis by these communities, outside of their communities for general adult use, ought not to be overly prescriptive inasmuch as quantities, infrastructure and cultivation methodologies are concerned.

Such regulations should rather be primarily concerned with skills development and formulating a spectrum of quality/safety standards, with an easily realisable baseline at one end and good agricultural and collection practices at the other, and one’s position on the spectrum being determined by the claims made about the cannabis being sold.

At both ends of the spectrum, indigenous communities ought to be allowed to trade cannabis outside their communities, for general adult use.

Informing this approach is the common law — ie one developed through the doctrine of “voluntary assumption of risk” which provides that, where a reasonable adult willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they are not able to bring a claim against the other party.

For example, a boxer cannot sue his opponent for being knocked unconscious in a legally sanctioned boxing match. Similarly, in circumstances where we are able to formulate a baseline standard of quality/safety — as with a legally sanctioned boxing match — a reasonable purchaser consuming indigenous cannabis should have no right of action against the originating community member if, for whatever predictable reason, that goes wrong. DM