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The South African Human Rights Commission (SAHRC) has received several human rights complaints from the Rastafari and cannabis community regarding arrests despite the decriminalisation of the private use, possession and cultivation of cannabis in South Africa.
The SAHRC said these arrests were being made despite the decriminalisation of adult cannabis use, possession and cultivation that came with the 2018 Minister of Justice and Constitutional Development v Prince judgment; as well as the cannabis legalisation under the Cannabis for Private Purposes Act in 2024, and the 2023 SAPS directive imposing a moratorium on related arrests.
With the festive season unfolding, the SAHRC sought to remind law enforcement, SAPS and the National Prosecuting Authority (NPA) on Monday, 23 December, that the arrest or prosecution of adults for the private use, possession or cultivation of cannabis, as well as making assumptions about dealing in cannabis, was “inconsistent with both the law and national operational directives”.
The concern was that these arrests and/or prosecutions could lead to human rights violations being perpetrated by law enforcement.
As a result, the SAHRC urged the Department of Justice and Constitutional Development to draft regulations for the Cannabis for Private Purposes Act, in consultation with the Rastafari and other cannabis-using communities; as well as to advise on a specific commencement date for the Cannabis for Private Purposes Act.
The Cannabis for Private Purposes Act 7 of 2024 was assented to on 28 May 2024 and published in the Government Gazette on 3 June 2024 to bring life to the Constitutional Development v Prince judgment.
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However, as the SAPS directive noted, neither legislation nor regulations prescribe the allowed amount of cannabis an adult may be in possession of, above which they may be presumed to be dealing in cannabis or have cultivated. The dealing of cannabis is still unlawful.
Thus, as things stand, the directive instructs that adults may not be arrested on the presumption of dealing cannabis.
But throughout the second half of 2024, the SAHRC received several and repeated complaints from Rastafari movements and organisations in the Free State, Gauteng and Western Cape regarding the arrest of adult private users, possessors and cultivators of cannabis that is believed to be unlawful.
Complaints were also received from the Springbok Magisterial District in the Northern Cape.
Delay in drafting the pertinent regulations
SAHRC Commissioner Tshepo Madlingozi told Daily Maverick these arrests came as a result of the delay in the drafting of regulations related to the Cannabis for Private Purposes Act.
This was echoed by attorney Ricky Stone from Cullinan & Associates and Gareth Prince, legal adviser to the Rastafari and cannabis community as well as chairperson of the Cannabis Development Council of South Africa.
The SAHRC has written to the National Commissioner of Police, General Fannie Masemola, and released its statement on Monday because members of the Rastafari community allege that they suffer from increased arrests and detention during the festive season, often waiting for several days before appearing in court.
Madlingozi said complainants reported that their houses and persons were searched and they were arrested on suspicion of dealing.
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In most cases, he said they were arrested, detained and subsequently released after a few days without charge. Some complainants alleged that their cannabis was not immediately returned to them or not returned at all.
“One of the consequences of the delay in drafting the pertinent regulations is that it is left to the discretion of police officers to determine whether a possessor of cannabis is possessing it with the intention of dealing in cannabis,” Madlingozi said.
The delay in the drafting and implementation of these regulations has meant that adult, private users of cannabis continue to live under the shadow of criminalisation, according to the SAHRC.
For members of the Rastafari community, Madlingozi said that the continuing and constant fear of arrest perpetuated their vulnerability, marginalisation and a feeling of being a pariah for simply wishing to live according to the precepts of their faith and religion.
Arrests and police attitudes towards cannabis community
Police officials not adhering to the moratorium and SAPS directive has been the greatest concern, according to Prince, suggesting SAPS hadn’t changed its culture or attitude towards members of the cannabis community.
“The reason why we complain to the SAHRC is because of flagrant and blatant ignorance of the law on the part of the police, and at times deliberate violations of the new police directive as the law after the Constitutional Court judgment,” Prince said.
In the past month or two, Prince has dealt with up to 10 cases of people arrested on the West Coast Road, on the N7, on their way to either Clanwilliam, Citrusdal, Springbok and Klawer – which he said seemed to be a notorious point where people are stopped simply based on them having cannabis.
“It ranged from 200 grams to two kilos. People are simply arrested for being in possession, whereas, in terms of our law, you can only be arrested if there is an objective suspicion that you are dealing in cannabis,” Prince said.
He added that it was a wilful and deliberate violation of the law when people were arrested for simply being in possession of cannabis.
“People get arrested. They get held for 48 hours, and then they get released without appearing in court. They get released without any court date and without them being restored of their cannabis.
“Basically, police rob these people of their cannabis,” Prince said.
Prince said the Rastafari community had experienced numerous instances since 2018 of unlawful arrests and this conduct by the police.
“The arrests just continue. [In] the quarterly crime stats reports from SAPS, you will see that ever since the judgment, they continue to report cannabis arrests as drug arrests, so they indiscriminately lump cannabis with other drugs, thereby continuing the narrative that cannabis is part of the illegal drug trade,” Prince said.
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As the festive reason unfolds, the Rastafari and cannabis community fear that these kinds of arrests will be accelerated.
“That’s why members of the cannabis community are considering whether we should launch an urgent application to court to get the protection, because the police are wilfully disobeying the national police directive that came out on the 23rd of August 2023,” Prince said.
Legal and legislative considerations
Cullinan and Associates attorney Stone said that arrests had continued and were clearly in violation of the findings of the judgment of September 2018 and of the SAPS Directive from the national commissioner of August 2023.
“That directive effectively came because there were these continued arrests… It probably comes down to a mix of ignorance amongst the [police] force to a large degree, where the new law, which the Prince Judgment created, then strengthened and buttressed by the directives from the national commissioner … hasn’t filtered down to a lot of your smaller towns,” Stone said.
Many cases are coming out of the Cape Town area, the Western Cape and in the former Transkei area. Every now and then there have been cases in smaller towns or the Free State.
“I do sympathise with the SAPS when it comes to enforcing the law as it is… If you had to walk into the streets or the city centres of any big city, you would truly think that the sale of cannabis to adults is lawful… But the burden of proof is on the SAPS to prove that they are dealing,” Stone said.
Interestingly, Stone said that the NPA was not prosecuting but issuing nolle prosequi (dismissals) in cases where SAPS can’t prove the crime of dealing.
“Once there are regulations, it would make things a lot clearer, especially when it comes to the enforcement side, because the regulations are required to establish and set the maximum amounts of cannabis that you can cultivate, use, and possess in private.
“Once those regulations are out and final, and the act is fully operational, you should then expect to see far less arrests because there is then at least a line drawn in the sand as to what the minimum and maximum quantities allowable are for cannabis,” Stone said.
The way forward
In February 2025, Madlingozi said the SAHRC would convene a roundtable with members of the cannabis community, cannabis organisations and users as well as relevant senior officials from the criminal justice cluster.
“We hope that this roundtable will lead to a holistic solution that is in line with the spirit of the Constitutional Court’s decision and the intention of the legislature,” Madlingozi said.
To ensure that South Africa developed a cannabis industry beneficial for the members of the cannabis community as well as for the state, Prince said positive engagement was required between the government and the cannabis community. That is what they had lacked in the past six years.
Prince said that one of the reasons they believed the Cannabis for Private Purposes Act to be unconstitutional and unlawful was because the very basic thing that the Act was supposed to do, which was to ensure that members of the cannabis community could exercise their rights to use, possess and cultivate cannabis, “We cannot do.”
This is because the Act failed to make provision for a legal source of cannabis. This means that if people within the cannabis community want to exercise their rights won on 18 September 2018, they have to break the law and risk arrest for them to exercise their rights.
Daily Maverick contacted the SAPS and NPA, but responses were not received by the time of publication. They will be included once received. DM