Implications of the changing legal status of cannabis in South Africa 2019

On 31 March 2017, Justice Dennis Davis handed down a landmark judgment in the Western Cape High Court that declared certain sections of the Drugs and Drug Trafficking Act, 1992 and Medicines and Related Substances Control Act, 1965 invalid and unconstitutional. Judge Davis also teaches constitutional law and tax law at UCT where he is an Hon. Professor of law. Subsequent to this judgment, the Constitutional Court ruled in 2018 that the personal use and cultivation of dagga in private is not a criminal offence, confirming in part the order of Davis J.

The decision was based on the individual’s right to privacy as entrenched in section 14 of the Constitution. The court suspended its order of statutory invalidity for a period of 24 months in order to give Parliament the opportunity to correct the impugned provisions. Uncertainty still exists as to how far-reaching the effects of the ruling will be. What, for example, will happen to the thousands of South Africans currently in prison for cannabis possession? Despite the fact that the public sale and consumption of cannabis will still be illegal, subject to the possibility of availability as a highly controlled medicine, it seems that the commercialisation of cannabis has already begun. Can we learn anything from the legalisation of cannabis in the Netherlands and Canada?

Anyone interested in the possible consequences of the judgment.


PART A: foundations
What is cannabis and what are the applications to which it can be put?

  • Active compounds: THC, Dronabinol, CBD
  • Also: hemp as a textile
  • South Africa as a site of cannabis production
    - Culture/tradition and illicit economy
  • Uses of cannabis: textiles, medicines, recreation, spiritual/culture

The legalisation of cannabis in South Africa

  • Background: historical legal position
  • Changing world legislative environment in contemporary times
  • Case law in South Africa (the Prince cases: then and now)
  • Relevant statutes and their current status. September 2020 deadline to amend these.

PART B: prohibited conduct
Possession use and cultivation of cannabis ‘in private’

The Constitutional Court did not fully define what constitutes ‘in private’. Does it include your car, the garden of a sectional title building, a private club? Is it nevertheless possible to develop some general principles from the judgment on this?

When does possession become dealing?

This is a cloudy area – the CC left this to a ‘know it when you see it’ approach. Difficult for civil society to know where they stand or for law enforcement officials to do their jobs. Is there room for improvement?

How to test for intoxication with cannabis?

  • Urine tests are long-lasting and do not test for level of intoxication at a particular time. A medical breathalyser type test is needed (or some alternative?).
  • This will impact on driving laws: intoxicated driving is not allowed. This is a criminal offence.
  • This will also impact on employment law: many employers will not allow intoxication at work, but how to test for this? NB: blunt urine test may not suffice as sufficient proof for dismissal.

PART C: commercial applications

  • Medical practitioners wanting to dispense cannabis to patients
  • Commercial entities wanting to sell cannabis products
  • Recreational outlets/tourism wanting to offer cannabis related services (compare Roxy Louw’s cannabis yoga retreats; dagga restaurant in Joburg)
  • Commercial entities wanting to cultivate cannabis (medicinal, hemp)
  • Life insurance: disclosure requirements and insurer policies
  • This mostly is a question of actuarial concern, but changing social norms may affect how risk is assessed in the future (e.g. alcohol use is not problematic, provided moderate)
  • NB: non-disclosure could result in a claim not being paid out

Andrew Hutchison, Lauren Kohn and Pierre de Vos.

Contact Details

Contact Person: 

Don Coue
Course Details

Course Delivery Method: 

In Class In Class

Presented Presented Courses

Course Duration: 

Half-day course


R995 per delegate

Course fee Includes: 

Parking and course material