Here’s why the legal status of cannabis in South Africa is complicated

You might have heard that it's now legal to use cannabis in South Africa. The truth is a lot more complicated - and interesting.

When I woke up on March 31st of this year, I heard that the use of cannabis in South Africa had just become legal. “Surely not?” I thought. “Surely this is an early April Fool’s joke?”

As a cannabis writer living in South Africa, I wasn’t entirely shocked. South African activists have been calling for legalization for quite some time. The pro-legalization movement has only been fueled by the recent legalization of weed in other parts of the world.

Truthfully, though, creating laws is a complicated process in South Africa. Despite the fanfare around the ruling, cannabis – or as we call it in South Africa, dagga – isn’t exactly legalized.

A brief history of cannabis in South Africa

Much like in the US, the stigma, fear and criminalization of cannabis in South Africa is deeply rooted in racism.

In ‘Dagga: A Short History’, author Hazel Crampton shows that South Africa has a rich history of using cannabis for trade and medical reasons. Cannabis first arrived in South Africa over a thousand years ago. The indigenous Khoi and San people used cannabis before colonial rule. In the first few hundred years of colonial rule, the inhabitants of South Africa grew and traded cannabis freely. It was used as a home remedy by early settlers and indigenous groups alike.

In the 1920s, the law began to restrict the cultivation, trade and use of cannabis. In a 2002 case, Prince v President of the Law Society of the Cape of Good Hope, Justice Albie Sachs noted that these laws were rooted in racism. He points out: 

“Only in that year (1921) were there serious signs of moral panic focusing around dagga, when South African criminological thinking came to be obsessed with interracial sex, the provision of alcohol by whites to blacks and the reverse flow of dagga. Of particular concern, he notes, was the ‘camaraderie’ which led some to lay aside race and other prejudices with regard to fellow addicts.”

When apartheid legally ended, many laws changed – but cannabis remained illegal.

Since then, the law has been challenged by many activists. This includes those who support the use of medical marijuana, and Rastafarian groups that claim criminalizing weed is a form of religious discrimination.

Current laws still unclear

On March 31st, 2017, the Western Cape High Court lived up to its name by ruling that cannabis should be legalized under certain circumstances. Many people rejoiced. Headlines declared that cannabis was now legal.

Unfortunately, when it comes to South African law, things aren’t so cut-and-dry. The High Court itself doesn’t have the power to legalize dagga overnight. “With this ruling, the legislature must now have a look at this, and create the actual law (ie. The Act) that will regulate cannabis use – if it is legalised after all,” explains law grad, Grace Moyo. “This law must be in line with the Constitution, otherwise it will be contested in court and could be struck.”

According to South Africa’s constitution, general laws can’t interfere with our constitutional rights – within reason, of course. At the High Court ruling, the state had to prove that cannabis was harmful enough for the state to interfere with the individual’s right to privacy. It couldn’t. Thus, the court supported the idea that the right to privacy is more important than ‘protecting’ society from cannabis.

The High Court ruling didn’t legalize cannabis, but it means that your right to privacy can protect you if you’re using and growing cannabis in your own home. The ruling also means that the law needs to be revised – a process that might take up to 24 months. While it’s likely that it will be legalized, according to legal experts, there’s a possibility that it won’t.

In other words, it would be inaccurate to say that it’s ‘legal’ to use cannabis in South Africa.

The revolutionary nature of the High Court ruling

This doesn’t mean that the High Court’s ruling isn’t pretty revolutionary.  It was a huge hurdle in the process of getting marijuana legalized.

What’s great is that the High Court’s decision wasn’t only based on the medical use of cannabis. The decision was based on protecting two constitutional rights: the right to privacy and freedom from religious discrimination.

In many places around the world, cannabis is only legal for medical use. While the medical use of cannabis is a big reason why it should be legalized, limiting cannabis to medical use is problematic. Healthcare isn’t accessible to everyone who needs it. If we only legalize marijuana for those who have prescriptions, cannabis won’t be accessible to everyone who needs it either.

The ruling suggests that the medical argument for cannabis isn’t the only good argument. Privacy and religious freedom are also good reasons why marijuana should be legalized. This shows the world that the law shouldn’t attempt to limit the way people use cannabis.

What’s next for South Africa’s fight for legalization?

Over the next 24 months, our legislature will have to grapple with the decision of whether or not to legalize weed. In the meanwhile, we’re going to see some fantastic lobbying from South African activists. Keep your eye on us – we might be the next country to legalize the herb!

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