Dealing in dagga in South Africa: Cops continue to clamp down on cannabis

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The South African Police Service (SAPS) issued a warning on 4 November 2019, that the sale of cannabis is still illegal if not specifically allowed under the Medicines and Related Act Substances Act.

This means that dispensaries or outlets, online sites and social media platforms which are marketing and selling cannabis and cannabis related products to the public, remain illegal.

In terms of the Traditional Health Practitioners Act, the definition of ‘traditional medicine,’ means “an object or substance, used in traditional health practice for the diagnosis, treatment or prevention of a physical or mental illness, or any curative or therapeutic purpose, including the maintenance or restoration of physical or mental health or well-being in human beings but does not include a dependence-producing or dangerous substance or drug.”

As a result, the Traditional Health Practitioners Act does not create a mechanism to sell cannabis and cannabis-related products that are not exempted in terms of the Medicines Act.

Cops left to make ‘judgement calls’

SAPS remind the public of the effect of the Constitutional Court judgment handed down on 18 September 2018. The judgement states that only an adult (18 years and older) may use, possess or cultivate cannabis in private for his or her personal consumption.

The use, including smoking of cannabis in public or in the presence of children, or in the presence of non-consenting adults is not allowed. The use or possession of cannabis in private other than by an adult for his or her personal consumption is also not permitted.

‘Drug Trafficking’

Dealing in cannabis remains a ‘serious criminal offence’ in terms of the Drugs and Drug Trafficking Act (No 140 of 199)2. The definition of dealing, explained by the Constitutional Court, currently reads:

“In relation to a drug, includes performing any act in connection with the transhipment, importation, cultivation other than the cultivation of cannabis by an adult in a private place for his or her personal consumption, collection, manufacture, supply, prescription, administration, sale, transmission or exportation of the drug.”

Cannabis and tetrahydrocannabinol (THC), (the substance that gives one a ‘high’) are currently listed as schedule 7 substances in terms of the Medicines and Related Substances Act of 1965.

Except when present in processed hemp fibre and products containing not more than 0,1 % of THC in a form not suitable for ingestion, smoking or inhaling purposes; or when present in processed products made from cannabis seed containing not more than 0,001 % of THC; or when used for medicinal purposes.

Cannabis, CBD and scheduled substances

Cannabidiol (CBD) is listed as a Schedule 4 substance. Certain CBD-containing preparations have been excluded from the operation of the Schedules by the Minister of Health for a time-limited period.

CBD-containing preparations for medicinal use are excluded when they contain a maximum daily dose of 20 mg of CBD with an accepted low-risk claim or health claims, without referring to any specific disease.

CBD-containing processed products are also excluded when the naturally occurring quantity of CBD and THC contained in the product does not exceed 0,0075 % and 0,001 %, of CBD and THC respectively.

Any CBD-containing products that are outside the parameters of the exclusion notice are subject to the provisions of the Schedules and registration as a medicine.

Licence to import or manufacture CBD-containing medicine

Any person who imports or manufactures a CBD-containing medicine in accordance with the exclusion notice must still be in possession of a licence issued in terms of section 22C(1)(b) of the Medicines Act and comply with any relevant standards, including current Good Manufacturing Practice (cGMP) standards.

Such persons must be able to present verified assessment by an accredited laboratory of the CBD and/or THC content of any product or medicine when requested.

SAPS is mandated to act, not only against businesses that sell cannabis illegally, but also against the customers who buy these products.

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