Cannabis Law: How to Interoperate it
As of November 2019
The Decriminalization of Cannabis:
- Any reference to ‘cannabis’ is also a reference to “the whole plant or any portion or product thereof”, excluding CBD. This would include cannabis, seeds, leaves, stalks, flowers and cannabinoids.
- The judgment handed down on the 18th of September 2018 by the Constitutional Court in the case of Minster of Justice and Constitutional Development and Others vs Prince; National Director of Public Prosecutions and Others vs Rubin; National Director of Public Prosecutions and Others vs Acton and Others  ZACC 30 (“the judgement”) has profoundly changed the rights of South African adults in relation to cannabis. In the wake of the Judgment, the full extent of the changes to the day-to-day lives of cannabis-using South Africans has yet to crystalize, but, as of 18th September 2018, the following is of application:
- Adults may, for their personal use, use, possess and cultivate cannabis in private. In this regards, privacy is not confined to the dwelling (home) of the adult in question. Adults may, for their personal use, use, possess and cultivate cannabis in any place that is private (i.e not public). The Judgement also, while not setting it out expressly, appears, in paragraphs 98 to 100 thereof, to suggest that adults may have cannabis on the private persona while passing through a public space, provided that such cannabis is concealed and is intended to be used for personal use in private. Readers are, however, advised to exercise extreme caution in this regards, at least until the understanding/s of the police, prosecutors and courts are established.
- Adults to use cannabis in public, or in the presence of children, or in the presence of non-consenting adults;
- Children to use, possess or cultivate cannabis, although readers should note that the medicines act may, in exceptional circumstances, permit the use of cannabis for the treatment of a child’s medical condition;
- Adults to use, possess or cultivate for any reason, other than for their personal use; and any personal to buy or sell cannabis, unless in accordance with the medicines act.
Medical vs Recreational Cannabis
- As to what constitute ‘cannabis’, both schedule 7 of the Medicines and Related Substances Act (“ the Medicines Act”) and part 3 of schedule 2 of the Drug and Drugs Trafficking Act (“the Drugs Act”) agree that, when ‘cannabis’ is being referred to, it means “the whole plant or any part thereof”
- However, schedule 7 of the Medicines Act expressly excludes: “processed hemp fiber containing 0.1 percent or less tetrahydrocannabinol (THC) and products manufactured from such fiber, provided that the product does not contain whole cannabis seeds and is in a form not suitable for ingestion, smoking or inhaling purposes; or processed product made from cannabis seeds containing not more than 10 milligram per kilogram (0.001%) of tetrahydrocannabinol and does not contain whole cannabis seeds.”
- Accordingly, any product which fits the above two descriptions are excluded from the definition of cannabis in both the Medicines and the Drug Act. Furthermore, cannabidiol (“CBD”) when intended for therapeutic (medicinal) purposes, is categorized in schedule 4 of the Medicines Act and, therefore, attracts slightly different legal consequences.Accordingly, cannabis and CBD will be dealt with separately below.
- Dealing first with the recreation growth and sale of cannabis, the Constitutional Court has ruled unambiguously that adults may, for their personal use, use, possess and cultivate cannabis in private, but that the purchase and sale of cannabis remains illegal, unless done in accordance with the Medicines Act.
- To be clear, there is currently no permit, license or other legal mechanism, which allows one to buy or sell cannabis for recreational purposes. It, therefore, appears that cannabis (including seeds) can only be shared freely between adults. This means no quid pro quo. Furthermore, to all those who believe that they cleverly ‘beaten the law’ by selling something like a ‘T-shirt’ that comes with ‘free cannabis’, unfortunately for you, our law caters for such scenarios (‘in fraudem legis’) and such a defence would do little more than to bring a smile to a conservative prosecutors face.
- When it comes to the growth and sale of medical cannabis, two legal mechanisms arise from the Medicines Act.
- The first of these is section 22C(1)(b) license (‘the s22C License”). Section 22C(1)(b) of the Medicines Act effectively allows any person to apply to the South African Health Products Regulatory Authority (“SAHPRA”) for a License to manufacture (or in this case, cultivate) import, export, act as a wholesaler of or distributer cannabis. Before taking any steps towards obtaining a s22C License, applicants are required to meticulously consider and implement the requirements set out in the document titled “Cultivation of Cannabis and Manufacture of Cannabis-Related Pharmaceutical Products for Medicinal and Research Purposes”, published by the Medicines Control Council (SAHPRA’s predecessor), in November 2017, (“the Guidelines”).
- However, nothing in a s22C License allows its holder to sell cannabis directly to the general public. This channel of sale can only be exploited by appropriately licensed pharmacists and medical practitioners. Furthermore, in terms of South Africa’s current pharmacy laws, the sale of cannabis may only take place where such cannabis has been formulated into a registered medicine (registration can take up to 5 years according to officials). It should be noted that, once a cannabis-containing medicines has been registered, it will be rescheduled to schedule 6, thereby allowing medical practitioners to prescribe their products to some to their patients.
- In essence, holders of a section 22C License can only: (1) sell their cannabis to pharmacist, who can then integrate that cannabis into a registered or registerable medicine, which in turn can only be sold by appropriately licensed pharmacist or medical practitioners to patients (on prescription); and (2) export their cannabis to appropriately authorized foreign people or entities.
- Therefore, until such time as a cannabis-containing medicine is registered in South Africa, the only means by which a cannabis-containing medicine can be sold to a South African patients is through a second legal mechanism, being authorization in terms of section 21(1) of the Medicines Act.
- Section 21(1) enables a medical practitioner to apply, on his or her patient’s behalf, for authorization from SAHPRA to import and sell a cannabis-containing medicine, which is not registered in South Africa, but which is registered in a recognized/ respected foreign jurisdiction(such as Canada), to the patient in question, subject to a strict dosage regime.
- With respect to the handling of cannabis generally, section 22A(9)(a)(i) of the Medicines Act provides that any person who intends to acquire, possess, manufacture, use, supply or handle cannabis for medicinal purposes must, as a starting point, obtain a permit from the Director General of the Department of Health (“s22A(9) Permit”). Furthermore when it comes to import or export of cannabis a permit in terms of section 22A(11)(a) of the medicines act must also be obtained (‘s22A(11) permit’). These permits when applicable will need to be obtained in addition to a s22C license or authorization in terms of section 21(1).
- As mentioned above CBD, when intended for therapeutic (medicinal) purposes is a schedules 4 substance and is subject to slightly different limitations to the rest of the cannabis plant (‘schedule 4 CBD’). When handling, importing or exporting schedule 4 CBD, it is not necessary to obtain a s22C license or s22A (9) and 22A(11) permit. However, medicines, which contain schedule 4 CBD, must be registered as a medicine and can still only be manufactured by appropriately licensed pharmacist and handled by appropriately licensed pharmacist or medical practitioners. Furthermore, medicines which contain scheduled 4 CBD can only be sold appropriately licensed pharmacist or medical practitioners to patients of prescription.
- However, products that contain CBD and which adhere to either requirement A or requirement B of notice No.R.756 of the Government Gazette No.42477 ( which expires on 15 May 2020, unless renewed by the minister of health), have been de-scheduled and may now be freely bought, sold and imported in South Africa (‘de-scheduled CBD products’) without adherence to the above stated requirements.
- However, this not to say one may now grow cannabis with the intention to make homemade CBD extract to be sold to the public. As soon as cannabis is grown for a purpose other than personal use, one must obtain and s22C license, it being the only license that exist in South Africa that allows one to import, export and cultivate cannabis
- We note on 4 November 2019 SAHPRA and SAPS issued a joint media statement in which they content that one would still require a s22C license in order to import de-scheduled CBD Products. As at the date of writing, Schindlers Attorneys, have written to SAHPRA and SAPS nothing and substantiating our disagreements on this topic and are awaiting a response.
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