The policy and legal landscape of cannabis in South Africa has slowly been reforming since the 2018 Constitutional Court Ruling granted adults in South Africa the Constitutional Right to have and use cannabis in private. In this landmark ruling, the Constitutional Court gave Government two years to make the necessary amendments to existing laws as well as to write new laws to govern people who interact with cannabis.
Almost a decade later, ongoing slow policy and legal reforms have resulted in widespread confusion around interactions with cannabis among civil society and law enforcement alike. The basis of this confusion stems from the Privacy Judgement making no provision for adult users to safely access cannabis to have and use in private, particularly if they lack the private space needed to cultivate, possess, and indeed consume cannabis for any private purpose. Government’s lapse in promulgating new laws and the required regulations further means there is currently no defining law to govern how people access cannabis. Some amendments to existing laws are also still pending.
While the Cannabis for Private Purposes Act (2024) has been signed into law, it will only become legally effective once regulations for it are published. Once legally effective, the final amendments to other laws will see THC removed from the Drugs and Drug Trafficking Act as well as inclusion of how to regulate for cannabis use while driving in the National Road Traffic Act. Earlier amendments include the rescheduling of CBD and THC in the Medicines and Related Substances Act. Another important victory is the raising of THC thresholds in hemp (industrial cannabis) in the Plant Improvement Act and Plant Breeders Rights Act.
Due to ongoing arrests following the 2018 Privacy Judgement, national police directives were issued to the South African Police Services in both 2019 and 2023 to direct officers in how to properly engage with people in cannabis-related matters. Effectively, the directives were issued to reduce unlawful arrests and to save the SAPS from paying legal fees.
However, provincial police directives have also since been issued directing police to close down illegal cannabis retailers and dispensaries. Targeted businesses are typically openly trading in cannabis in public spaces and/or misapplying Section 21 of the Medicines Act. Unfortunately, Social Clubs and Private Clubs are similarly targeted due to some also misapplying existing legislation and its mechanisms, a good number of which have been misled by bad actors within the emerging cannabis industry. This also means that there is a generally poor understanding of what sets ethical Social Clubs operating within the confines of the Constitutional Court ruling apart from retailers, dispensaries, and unethical Social Clubs.
Overall, it is clear that the current policy and legal landscape is in a state of confusion. However, understanding the full scope of where matters currently lie can help clear up misunderstandings and highlight what is possible in the current policy and legal landscape. We will first look at the 2018 Constitutional Court Ruling (aka the Privacy Judgement or Prince 3), the laws that have since been amended or pending amendment and the impact of these amendments, the issued directives, and why and how ethical Social Clubs operate within the ambit of the law.
2018 CONSTITUTIONAL COURT RULING
The 2018 Constitutional Court Ruling, or Prince 3, found that adults in South Africa have the absolute Constitutional Right to privacy, and that this right extends to having and using cannabis in private. The ruling also found that we may cultivate cannabis for use in private.
The Constitutional Court further found it constitutionally invalid to criminalise any adult person for growing, having, or using cannabis in private in its ruling. It is therefore unlawful to arrest any adult person who cultivates, possesses, and/or consumes cannabis in private.
The ruling highlights Section 14 of the Bill of Rights ensures privacy, and that a private space is not limited to one’s home, but is any space which is not accessible by the public as a matter of right. This is echoed in the 2023 Police Directive on Cannabis-related Matters, issued shortly after the Cannabis and Hemp Phakisa Action Lab hosted by the Presidency from 19 to 23 June 2023.
The Constitutional Right to Privacy is enshrined in Section 14 our Bill of Rights:
Everyone has the right to privacy, which includes the right not have;
a. their person or home searched;
b. their property searched;
c. their possessions seized; or
d. the privacy of their communications infringed
While the Privacy Judgement a major victory for having and using cannabis in private, there are currently no laws directly governing cannabis in South Africa, as stated in the Constitutional Court Ruling:
93. “ […]after the handing down of this judgment, there will be no law governing possession of cannabis by an adult in private for his or her own personal consumption in private that makes such possession a criminal offence. If that conduct will no longer be a criminal offence, there can be no basis for a peace officer to reasonably suspect an adult in that situation to be committing or to have committed an offence by being in possession of cannabis.”
It should be noted here that although the Cannabis for Private Purposes Act (7 of 2024) has already been signed into law, it is not yet legally effective because regulations still need to be published for it. Until such time, “there will be no law governing the possession of cannabis private for his or her own personal consumption in private that makes such possession a criminal offence”.
This means that aside from the 2023 Police Directive on Cannabis-related Matters circulated nationally, there are no effective legal guidelines for how to police people who interact with cannabis at any stage in the value chain.
As mentioned earlier, the Privacy Judgement unfortunately fell short of fully securing the Constitutional Right to have and use cannabis in private for adults who do have the time, skills, equipment, funds, or space to grow, possess, and consume cannabis in private.
Through denying adults the means to access cannabis to be used in private for any private purpose, the Constitutional Court Ruling effectively allowed for the continued harassment and arrest of any persons cultivating, processing, possessing, or consuming cannabis in private. Ethical Social Clubs seek to undo this harm by providing Members with the necessary privacy and means to fully enjoy their Constitutional Right to have and use cannabis in private spaces.
LEGAL REFORMS
Various amendments to existing laws were ordered by the Constitutional Court in the Privacy Judgement. The Medicines and Related Substances Act (110 of 1965) was already amended in in 2019 and 2024 respectively, while the Drugs and Drug Trafficking Act (140 of 1992) will be amended once regulations for the Cannabis for Private Purposes Act (7 of 2024) are published, making the Act legally effective. The National Road Traffic Act (93 of 1996) will also be amended at this time.
Medicines and Related Substances Act (110 of 1965)
2019 saw CBD - or Cannabidiol - rescheduled from Schedule 7 into two separate schedules, namely Schedule 0 and Schedule 4 to improve patient and consumer access. Schedule 0 is for any products containing CBD below 600mg per sales pack, with daily dosing not exceeding 20mg of CBD. Such products can be found at regular retailers. Any CBD products containing more than 600mg of CBD are Schedule 4, and need to be obtained from a pharmacy.
In 2024, THC - or the main psychoactive component of cannabis Delta-9 Tetrahydrocannibinol - was rescheduled from Schedule 7 to Schedule 6 under the Medicines and Related Substances Act under recommendation of the South African Health Products Regulatory Authority (SAHPRA) to enable the possession and use of cannabis by an adult in private. Basically, THC and its isomers, esters, ethers, salts, and related substances are now seen to have “pharmacodynamic properties similar to the listed substance referred to in this Schedule [6]” rather than as “substances with no recognized medicinal use” under Schedule 7.
The rescheduling of THC from Schedule 7 to Schedule 6 makes accessing cannabis and medicines containing cannabis easier through pathways like Section 21 of the Medicines and Related Substances Act for patients with legitimate medical needs. However, using this pathway requires the oversight of a prescribing doctor to make a Section 21 application to SAHPRA on the patient’s behalf. Treatment options must contain Approved Pharmaceutical Ingredients (APIs), and must be dispensed by a Responsible Pharmacist. If a patient can select their own “medicinal cannabis” or “medicinal cannabis edibles” off a shelf while being attended to by an unqualified person, Section 21 is being misapplied. In such outlets, the Traditional Health Practitioners Act may also be misapplied to illegally trade in cannabis, further challenging the rights of Traditional Healers and those who consult with them.
Unfortunately, due to various outlets misusing Section 21 of the Medicines Act to illegally trade in cannabis and cannabis products that may not be suitable for medicinal use has resulted in a silent halting of Section 21 applications for medicinal cannabis by SAHPRA. While this appears to be curbing the abuse of Section 21, it is also having a major impact on patients with legitimate health concerns seeking relief or treatment with medicinal cannabis.
Drugs and Drug Trafficking Act (140 of 1992)
Once regulations are passed for the Cannabis for Private Purposes Act, dronabinol or transdelta-9-tetrahydocannabinol will be deleted from Part II of Schedule 2 while Part III of Schedule is amended through deleting “Cannabis (dagga), the whole plant or any portion or product thereof, except dronabinol [(-)-transdelta-9-tetrahydrocannbinol]” from the Drugs and Drug Trafficking Act.
Effectively, the deletion of THC and cannabis in these sections will hopefully see a reduction in ongoing arrests of people who use or interact with cannabis for private purposes.
National Road Traffic Act (93 of 1996)
Amendments to the National Road Traffic Act seek to regulate for people who may drive under the influence of THC. The amendments outline limits as well as how to police people driving under the influence of THC, much like alcohol. However, it is unclear how people will be accurately tested for inebriation.
It should be noted that one’s vehicle is considered a private space under both the Constitution and the 2023 Police Directive on Cannabis-related Matters. This means that one may possess cannabis in one’s vehicle provided that it is concealed from public view. One may consume cannabis in a private vehicle while it is in a public space such as a parking lot or road. The Cannabis for Private Purposes Act also provisioned the transportation of cannabis. However, amounts will only be clear once regulations are published.
POLICE DIRECTIVES
As discussed above, two national Police Directives guiding the South African Police Services in their engagements with people who interact with cannabis were issued in 2019 and 2023 respectively.
The 2019 National Police Directive followed the 2018 Constitutional Court ruling to the SAPS and sought to outline how officers of the SAPS would need to engage with persons who cultivate, possess, and/or consume cannabis in private for private purposes. Notably, police officers were instructed to practice their discretion when dealing with a cannabis related matter, but to not arrest individuals without first gathering the facts to ascertain whether they are guilty of an offense.
By 2023, unlawful arrests of people who use or interact with cannabis remained an ongoing concern. This point was discussed at length during the Cannabis and Hemp Phakisa Action Lab arranged and hosted by the Presidency under Project Vulendlela in June 2023. The 2023 Police Directive on Cannabis-related Matters sought to drastically curb unlawful arrests as well as the costs involved to the SAPS. This directive again highlighted what police officers may and may not do when engaging with any cannabis-related matter.
Both directives helped to reduce unlawful arrests. However, police remain guilty of unjust actions perpetrated against cannabis users, and continue to unlawfully arrest and harass cannabis users.
In late 2026, a provincial directive was circulated in Gauteng directing SAPS officers to clamp down on dispensaries guilty of misapplying Section 21 of the Medicines Act as well as outlets illegally trading in cannabis. It is not clear at the time of publishing if similar directives may be circulated to other provinces or even nationally. It is also not certain what kind of impact this directive may have on Social Clubs operating within the ambit of current legislation, rulings, and policies.
ETHICAL SOCIAL CLUBS
Since the 2018 Constitutional Court ruling, Social Clubs and Private Clubs have mushroomed across South Africa. Many of the early entrants based their Club Models on the model developed by ENCOD.org (European Coalition for Just and Effective Drug Policies) whereby Social and Private Clubs seek to operate within the ambit of local laws. Most ethical Social Clubs still apply the basis of the ENCOD model to their operations, but with certain adjustments to better suit the current legal and policy landscape of cannabis in South Africa.
In the South African legal context, adults (18+) have the Constitutional Right to have and use cannabis in private spaces. However, not all adults have the necessary private space to cultivate, possess, and/or consume cannabis. The Privacy Judgement also failed in provisioning access to cannabis for such individuals.
Ethical Social Clubs, like those that use KingsLeaf Social Club Systems, seek to overcome this barrier to access by providing the necessary private spaces for adults in South Africa to fully enjoy their Constitutional Rights. The Constitutional Rights of cannabis users, and by extension Social Clubs, are supported by the 2023 Police Directive on Cannabis-related Matters, which outlines Cannabis can be collectively owned, and that any space to which the public does not have access by way of right is private.
Social Clubs using KingsLeaf Social Club Systems are private Members Only spaces fully run by Members for Members. All cannabis is collectively owned by Members, and all cannabis and cannabis products are fully Tracked and Traced from Seed / Clone to Sharing. Only Members work at Social Clubs as Crew Members. Only Members cultivate, process, and/or manufacture cannabis and cannabis products on behalf of Members who lack the private space, time, and skills to do so for themselves. These Members in turn collectively compensate Members who cultivate, process, and/or manufacture cannabis and cannabis products for their services.
Social Clubs operate in a closed-loop and therefore do not participate in any diversion into or from illicit or medicinal markets. Social Clubs completely Track and Trace collectively owned cannabis from Seed / Clone to Sharing, as supervised by their overseeing Warehouse. Seeds or Clones can be distributed between Cultivating Members by the Warehouse, or Cultivating Members can donate Seeds and/or Clones. All plants are tagged, according to Track and Trace requirements, helping to ensure that no cannabis or cannabis products from non-Member sources are provided to Members.
IN CONCLUSION
The Constitutional Right of adults in South Africa to have and use cannabis in private remains protected by both Section 14 of the Constitution and the 2018 Constitutional Court Ruling. This Right is further supported by the 2023 Police Directive on Cannabis-related Matters.
The private spaces provided by ethical Social Clubs ensures that adults have the necessary private space to have and use cannabis without fear of prosecution or persecution.
