We bought dagga. It was probably illegal. Here’s why

Ashraf’s story

I walked into a store in Cape Town and I bought a gram of cannabis for R100. With GroundUp’s money. I had my editor’s consent.

The store was small, dimly lit, and lined with a variety of cannabis products in glass jars.

On the table was a stack of medical forms used by a doctor to prescribe cannabis to people for health reasons. 

I did not have a doctor’s note. So I complimented the salesman on his luscious black curls. I think it worked because he became very chatty. Let’s call him Bob.

We discussed how the store works and the current laws. He said they’re working in a “grey area”.

There are two ways the store sells cannabis to people, Bob explained.

Method one: the membership system. Bob said that members pay a monthly fee and receive a certain amount of cannabis over a month. He says this gets around the legal problem, which is, he says, that “buying and selling” are not allowed. With the membership system, Bob said, you’re not doing either.

Method two: the medical method. The store uses section 21 of the Medicines Act to facilitate medical sales.

Bob said he was keen for the store to use the medical route for customers during the day and to run a club in the evenings where members come and smoke in a chilled environment.

I explained to Bob that I get quite anxious when I smoke. I can hear myself think with an echo of my thoughts swirling in my brain. (Boring truth be told, I haven’t smoked cannabis in years, and I didn’t smoke what I bought either. I won’t reveal who did.) Bob recommended a specific cannabis for me.

I asked him if he could recommend a doctor so I could get a prescription. Laughing, he said that he was a doctor. I think he was only half-joking because it seemed like we then used method two: the medical route. He took out a scale and some bright green cannabis. He weighed it and sold me 1 gram of OG Kush for R100.

Nope, that’s not how the law works

Was Ashraf’s transaction legal? No, according to a lawyer with expertise in the cannabis industry whom we spoke to.

First, the lawyer explained, cannabis can only be produced in a facility licensed by the South African Health Products Regulatory Authority (SAHPRA). It’s unlikely that the store obtained its cannabis from such a licensed facility. In fact there is a view that even weighing out a small amount of weed from a bag obtained from a licensed cultivator, and then packaging it, is manufacturing.

Second, if Section 21 of the Medicines Act is to be used, the sale of cannabis can only take place after the doctor has prescribed it and SAHPRA has authorised the sale of weed to that particular patient. (Ashraf didn’t even give Bob his name.)

Even if these two conditions are met, no sale of cannabis to a patient can take place outside of a retail or community pharmacy.

There’s nothing unique about Ashraf’s experience. Dozens of stores across the country are selling cannabis using the same approach. We got the impression that in Durban there isn’t even a pretence of trying to be legal as there is in some of the Cape Town and Johannesburg stores. Our experience in Durban is that you can pretty much walk into stores and simply buy cannabis over the counter without any fuss.

How it got this way

South Africa’s cannabis sector is in limbo five years after the Constitutional Court ruled that cultivation and possession of the plant for private use is legal.

In 1997, Gareth Prince, a practising Rastafarian, applied to the Law Society of the Cape of Good Hope to be admitted as an attorney. The Society rejected his application because he had two criminal convictions for possession of cannabis and he continued to smoke cannabis. Prince argued that the use of cannabis was part of his religion and that the Law Society’s decision violated his right to religious freedom.

Prince took the decision to court in 1998. But the High Court, Supreme Court of Appeal and Constitutional Court ruled in favour of the Law Society. The Constitutional Court’s 2002 decision was close: five versus four.

After the Constitutional Court’s judgment, Prince and two cannabis activists – Jeremy Acton and Jonathan Ruben – approached the courts again. Instead of focusing solely on religious freedom, their applications challenged provisions of the Drugs Act and Medicines Act that criminalised the use of cannabis on the basis that these provisions violated the right to privacy in section 14 of the Constitution. As these challenges were related, the High Court consolidated the cases.

In 2017, the Western Cape High Court declared the provisions in the Drugs Act and Medicines Act that criminalise private adult use of cannabis unconstitutional. This decision was upheld by the Constitutional Court in 2018. This judgment has become known as Prince 3. However the Constitutional Court did not confirm the High Court order that decriminalised the dealing of cannabis. Parliament was given 24 months to deal with the offending legislation.

In the event that Parliament didn’t fix things within the two-year deadline, the court ruled that its reading-in remedy (which permits the narrow exception for personal use) would become permanent, at least until Parliament amended the law.

Five years later, the slow pace of drafting legislation following the Prince 3 judgment has resulted in a proliferation of businesses using “grey areas” in the wording.

“People are looking for gaps, so these so-called dispensaries are stepping into the market claiming to sell something legal,” explained Andy Gray, chair of the Cannabis Working Group at SAHPRA and a pharmacy lecturer at the University of KwaZulu Natal (UKZN).

Substances that you can ingest are scheduled by SAHPRA from 0 to 8. A Schedule 0 substance has very few controls; anyone can sell it without any licence required. At the other end of the scale, a Schedule 8 substance is very strictly controlled, it may have some medicinal benefits but also has an extremely high potential for abuse. Medical practitioners have to get special permission from SAHRPA for the use and prescription of any of these substances.

After the Constitutional Court ruling, SAHPRA lowered the schedules of some of the substances found in cannabis. Low doses of Cannabidiol (CBD), a component of cannabis that isn’t psychoactive, were lowered to schedule 0 in complementary medicine products. But it is unclear if CBD in products such as drinks and gummies, with their varying dosages, manufacturing processes and contents – found in nearly every major shopping outlet – qualify as “complementary medicines”.

Tetrahydrocannabinol (THC), the key psychoactive component of cannabis, was lowered from Schedule 7 to Schedule 6. But schedule 6 substances are still highly restricted: According to SAHPRA, these are medical substances that have “a moderate to high potential for abuse” which necessitates strict control and management of supply, including restrictions on repeat prescriptions and a supply limit of 30 days’ worth.

Danmari Duguid is head of the cannabis department at Schindlers Attorneys who represented Julian Stobbs and Myrtle Clarke, intervening parties in the 2018 Constitutional Court case, Prince 3. She says that the only way you can legally buy cannabis containing THC is through the medical route. This is done using section 21 of the Medicines Act.

Why Section 21 of the Medicines Act is important

In a nutshell, this clause is a way for people with particular needs to legally obtain medicines that have not been registered by SAHPRA, but contain scheduled substances. For example, patients with serious cases of lung or skin cancer use Section 21 authorisation to access a medication called nivolumab (branded as Opdivo). SAHPRA has registered a lung and skin cancer medicine called pembrolizumab (branded as Keytruda) but this may not work with every patient.

In the 2000s, the Treatment Action Campaign (TAC) famously imported a generic version of a drug called fluconazole to treat an illness that particularly affects people with advanced HIV disease. A patented version of the medicine was available in the country but it was extremely expensive. The much more affordable version of the medicine that the TAC imported was not registered in South Africa, so the then Medicines Control Council allowed a doctor working with the TAC to import the medicine for patients using section 21 of the Medicines Act.

But section 21 authorisations are far from a straightforward legal route to using cannabis as explained above.

Hardly any of the cannabis retailers that claim to use the Section 21 process are adhering to what’s legally required. It is in theory possible but in practice very hard for small cannabis retailers to do so.

Also, the Cannabis for Private Purposes Bill, currently before Parliament, does not provide for a recreational or adult market.

Gray told GroundUp that he fears people who want to buy and sell recreational cannabis in private will continue to abuse the medical route.

This happened in California in the United States, where the state legalised cannabis through the medicinal route and this led to extensive abuse of the process by patients, doctors and retailers.

The most direct way to combat this abuse is through the introduction of an adult-use market, said Gray. This would mean cannabis products would be highly regulated and taxed, similar to alcohol and tobacco. This model could include the “legacy” or “peasant cultivators” who grow cannabis in rural parts of the country, and cannot meet the strict conditions for growing medical-grade cannabis, said Gray.

Duguid agrees that the adult use model would work best for the legalisation of recreational cannabis sales and use in the future.

“At the moment you are allowed to brew beer for your own consumption, similar to how you are now allowed to grow cannabis for your own consumption after the 2018 judgement; but the moment you want to retail the product you should need a licence like you do to sell alcohol. This would ensure you meet certain safety standards,” said Duguid.

The Department of Agriculture and Land Reform and the Presidency recently hosted the Phakisa Action Lab in June 2023, which brought together 130 representatives of government and business, religious leaders and legal experts to discuss the legalisation of cannabis and hemp.

The final report from Phakisa emphasised that the government is taking a “science-based and human rights approach” approach to creating and regulating an adult-use market, but that the “supply and trade of cannabis to consumers remains illegal”.

The report suggests adding a clause to the Cannabis for Private Purposes Bill that would remove cannabis from the Drugs Act “subject to parliamentary process and approval”.

The report highlights that adult-use legalisation must include “the existing historical cultivation of cannabis by indigenous communities and black rural farmers”.

However, it does not provide a timeline for doing this.

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GroundView: Legalise dagga – properly

By GroundUp Editors

The reality is that it is extremely difficult to sell cannabis legally in South Africa. Membership or “grow” clubs do not offer a loophole, as a court ruling found. While in theory, it’s possible to use the section 21 authorisation route to sell cannabis, one is hard-pressed to find compliant cannabis stores. In any case, this is definitely not what was envisaged when section 21 was drafted, and the misuse of this clause undermines the very important Medicines Act. It is not a good policy to make doctors and SAHPRA the gatekeepers to cannabis.

But prosecutions of retailers using these mechanisms are rare to non-existent, and would probably be too costly, unpopular and risky for the state to pursue with any kind of vigour.

The cannabis market has left legislation behind. Regulation that doesn’t involve the theatre of membership clubs and section 21 authorisations is needed. Adults should be able to buy cannabis, smoke it in safe circumstances and be confident that what they are smoking meets certain quality standards. Just as with beer and tobacco.

Published originally on Groundup | Lucas Nowicki and Ashraf Hendricks