CANNABIS LAW AND LEGISLATION IN SOUTH AFRICA
Medical use
The medical use of cannabis in South Africa is regulated in terms of the Medicines and Related Substances Act, 1965 (Medicines Act). The Medicines Act categorises drugs and medicinal substances into eight groups, from schedule 1 to schedule 8, with schedule 8 being the most toxic substances with the highest level of restricted access. With respect to cannabis, the Medicines Act distinguishes between cannabidiols (CBD), which is non-psychoactive, and delta-9 tetrahydrocannabinol (THC), which is psychoactive in nature. Cannabis (the whole plant or parts or products thereof) and THC are schedule 7 substances. Schedule 7 substances are deemed to have no legitimate medicinal use and can only be accessed by means of a permit issued by the Director- General of the National Department of Health (DoH).
Schedule 6 substances are only available on the prescription of an authorised prescriber (i.e. a medical practitioner) and can only be obtained from a pharmacy or the holder of a dispensing licence issued in terms of the Medicines Act. THC will constitute a schedule 6 substance, when:
- used for therapeutic purposes (as a synthetic variant, dronabinol); or
- used for personal and industrial purposes as set out below.
CBD is listed as a schedule 4 substance, save for limited circumstances in which CBD may be classified as a schedule 0 substance (Unscheduled CBD Products). Like a schedule 6 substance, schedule 4 substances are only available on the prescription of an authorised prescriber. Schedule 0 substances can be purchased off the shelf
at places like pharmacies, supermarkets, health shops or convenience stores. Unscheduled CBD Products comprise of: (i) complementary medicines containing no more than 600mg CBD per sales pack, providing a maximum daily dose of 20mg of CBD, and making a general health enhancement, health maintenance or relief of minor symptoms (low-risk) claim; or (ii) processed products made from cannabis raw plant material intended for ingestion, containing 0.0075% or less of CBD, where only the naturally occurring quantity of cannabinoids found in the source material are contained in the product. However, synthetic cannabinoid substances are schedule 7 substances.
Patients have access to medicinal cannabis in the form of CBD through their pharmacies, provided they have a prescription. Unscheduled CBD Products can also be obtained from pharmacies, supermarkets, health shops or convenience stores. THC based products or synthetic CBD requires the patient to obtain a DoH permit. However, THC, when used for therapeutic purposes, may be issued by a pharmacist in terms of a prescription issued by the doctor.
The violation of the Medicines Act due to unlawful medicinal use of cannabis carries serious criminal sanctions (up to 10 years imprisonment, with or without a fine).
Recreational use
Recreational use of cannabis became legal in 2018 following the constitutional court’s ruling in
Minister of Justice v Prince. 1 In the matter of Minister of Justice v Prince, the court ruled that adults may, for their personal consumption, use, possess and cultivate cannabis in private. In this regard, privacy is not confined to the dwelling (home) of the adult, and adults may, for their personal consumption, use, possess and cultivate cannabis in any place that is private and not public. In terms of the Medicines Act, THC is not a regulated substance if it takes the form of raw plant materials is cultivated, possessed, and consumed by an adult, in private for personal consumption. The provisions of the Drugs and Drug Trafficking Act, 1992 (Drugs Act), which previously criminalised any form of cultivation, possession, and consumption of cannabis, were declared unconstitutional in Minister of Justice v Prince.
Any recreational use, possession or cultivation of cannabis which is not done in by an adult in private is an offence under the Drugs Act. Cannabis is classified as an undesirable dependence producing substance in terms of the Drugs Act, and violations of the Drugs Act carry sentences ranging between 12 months and 25 years imprisonment (with or without a fine), depending on the severity of the offence.
Industrial use
The following categories of THC, which may have industrial use, are excluded from schedule 7 of the Medicines Act:
- processed hemp fibre products (e.g. textiles, bricks, ceiling boards) when: (i) the THC concentration is ≤ 0,01 %, (ii) the product is in a form not suitable for ingestion, inhalation or smoking, and (iii) it does not contain whole cannabis seeds; and
- processed cannabis seed products (e.g. hemp seed oil, cosmetics containing hemp seed oil) when: (a) the THC concentration is ≤ 0,001 %; and (b) the product does not contain whole cannabis seeds.
In all instances, the import, export and wholesale distribution and cultivation of cannabis for industrial purposes may only be undertaken by persons who hold a permit issued by the DoH in terms of section 22A(9)(a) (i) of the Medicines Act. Medicinal products (including Unscheduled CBD Products) must be manufactured under Good Manufacturing Practice conditions in a facility licensed in terms of Section 22C of the Medicines Act.
Patentability
Following the limited legalisation of cannabis in 2018, formulations and medical and non-medical indications for cannabis products or even genetically modified cannabis may qualify for a patent, plant variety and/or copyright protection, provided the necessary requirements are met.
Latest developments
The Cannabis for Private Purposes Bill (Bill) was tabled in Parliament in August 2020 and will be debated in the course of 2021. While the Bill does not make provision for the commercialisation of cannabis, it criminalises smoking cannabis in public or selling it and sets limits on how much cannabis individuals may own for private use and cultivation. For a person living alone, the bill prescribes a maximum of 600g of cannabis and 1.2kg for two or more adults in the same household. However, the Bill also proposed the expungement of criminal records of persons convicted for minor cannabis possession charges under historic drug control legislation.
https://cms.law/en/int/expert-guides/cms-expert-guide-to-a-legal-roadmap-to-cannabis/south-africa
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