Cannabis Shops Still Illegal Despite New The Cannabis for Private Purposes Act

Yes, under certain circumstances.

The main purpose of any authorisation granted in terms of section 21 of the Medicines and Related Substances Act is to provide access to medicines on an exceptional basis, where conventional therapies have been ruled out, have failed or are unavailable.

Therefore, in certain exceptional circumstances a medical practitioner, duly registered by the Health Professions Council of South Africa ('HPCSA'), can apply to the SAHPRA for their bona fide patient to obtain access to an unregistered THC-containing medicine for a finite period of time determined by SAHPRA (usually 3 months). To the extend use of the medicine beyond the period authorised, further Section 21 exemption applications will need to be applied for.

This also applies to accessing flowering tops (bud) from a local SAHPRA licensed manufacturer in possession of a medicinal cannabis license.

Going this route will attract a R350 Section 21 Exemption non-refundable application fee to SAHPRA, and the paying of a consultation fee to a doctor willing to fill in the forms and and to submit the application/s.

Click here to access SAHPRA's Guideline on Section 21 Exemptions.

Click here to access SAHPRA's FAQ on Cannabis Licensing.

THE COURTS WILL DECIDE.

Ever since the 2018 Constitutional Court judgment which led to the new Cannabis for Private Purposes Act, cannabis clubs have mushroomed across the country. Some are low key operations operating from private homes, while others occupy the high street, looking more like boutiques or pharmacies than a social venue.

These clubs operate on the model of offering a professional horticultural services of cultivating cannabis on behalf of their signed up club members, who might not have the land available or means to grow cannabis themselves.

Operating a cannabis grow club is therefore still deemed to be a criminal act in terms of the Drugs and Drug Trafficking Act, the Medicines and Related Substances Act and Foodstuffs, Cosmetics and Disinfectants Act, and a conviction can lead to a fine (with a criminal record) or lengthy imprisonment. However, this issue is likely to be ongoing, with an appeal expected.

No.

Traditional healers, governed by the Traditional Health Practitioners Act (Act No. 22 of 2007), don’t have special permission to prescribe cannabis or THC products. Even though this law was passed in 2007, it hasn’t been put into action yet because the necessary rules and regulations stipulated in the legislation haven’t been established. Therefore, no traditional healers have been officially registered (licensed) by the Traditional Health Practitioners Council.

In the cannabis industry, it's common for people to buy membership certificates from very questionable traditional healer associations. However, having these certificates doesn’t confirm someone as a legitimate Traditional Health Practitioner, or confer them the right to sell cannabis or THC-containing products.

According to Section 1 of the Traditional Health Practitioners Act, THC-containing cannabis isn’t considered a 'traditional medicine'. This is because it’s still classified as a drug under the Drugs and Drug Trafficking Act, and is known to cause dependence.

"traditional medicine" means an object or substance used in traditional health
practice for -
(a) the diagnosis, treatment or prevention of a physical or mental illness; or
(b) 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;

In contrast to several other countries where cannabis and THC-containing products have been sanctioned for both medical and recreational purposes, with legal avenues for their sale, South Africa currently lacks lawful means for acquiring or selling them for recreational use, unless through personal cultivation as stipulated by the newly enacted Cannabis for Private Purposes Act, or via the procurement of cannabis or THC-containing medications through a Section 21 exemption permit issued by SAHPRA, facilitated by a medical practitioner, to address specific health conditions.

There exist three pertinent national statutes explicitly prohibiting the sale of cannabis and THC-containing products as delineated below. Depending on the nature of the commercial transaction, any one or a combination of these laws may be invoked for the prosecution of violators.

THE DRUGS AND DRUG TRAFFICKING ACT (Act No. 42 of 1982)

Under the purview of the Drugs and Drug Trafficking Act of 1992, individuals found in possession of quantities exceeding a threshold yet to be determined by regulations under the Cannabis for Private Purposes Act, or those engaged in the sale of such substances, are presumed to be engaging in narcotics trafficking and are subject to criminal charges.

The Act defines "dealing" as encompassing any action associated with the transshipment, importation, cultivation, collection, manufacture, supply, prescription, administration, sale, transmission, or exportation of drugs. Additionally, "selling" is broadly defined to include offering, advertising, possessing, or exposing drugs for sale, disposing of them, exchanging them, or engaging in any transaction involving them, regardless of whether a monetary exchange occurs.

Penalties for contravening the Act range from admission of guilt fines, resulting in a criminal record, to imprisonment for a maximum of 15 years, contingent upon the severity and circumstances of the offense(s).

THE MEDICINES AND RELATED SUBSTANCES ACT (Act No. 101 of 1965)

The sale of cannabis bud for medicinal purposes, or THC-containing products lacking requisite licenses, constitutes a criminal offense under the Medicines and Related Substances Act. Cannabis and THC are classified as highly controlled Schedule 6 and 7 substances under this legislation.

Similar to the Drugs and Drug Trafficking Act, the Act's definition of "selling" encompasses various activities beyond mere monetary transactions, including bartering and exchanging goods or services. Thus, even transactions lacking a financial component are deemed sales under this statute.

Violation of the Act by selling unregistered Schedule 7 and 6 medicines constitutes a serious offense, punishable by fines or imprisonment for a maximum term of 10 years upon conviction.

THE FOODSTUFFS, COSMETICS AND DISINFECTANTS ACT (Act No. 54 of 1972)

This legislation regulates the quality standards, manufacture, importation, and exportation of foodstuffs, cosmetics, and disinfectants. It specifically impacts the importation, manufacture, and sale of consumables such as edibles and drinkables that may contain cannabis or THC.

The Act defines "foodstuff" broadly to encompass substances typically consumed by humans, but expressly excludes drugs as defined in the Drugs and Drugs Trafficking Act.

Enforcement of section 2(1) of the Act, pertaining to the sale of prohibited substances, constitutes a criminal offense. Convicted individuals may face fines or imprisonment for a maximum duration of two years, contingent upon the severity and prior convictions associated with the offense.

NOTE: There remains regulatory uncertainty over whether cannabidiol (CBD) may be included in foodstuffs, within the schedule 4 exemption criteria of the Medicines Act. This is under consideration by the Food Control Directorate of the National Department of Health, which administers and enforces the Foodstuffs, Cosmetics, and Disinfectants Act.

Yes.

The TNHA have written extensively on this subject, after successfully lobbying for CBD to be exempted from schedule 4 of the Medicines Act under certain conditions in 2018.

Click here for more information.

Yes, under certain strict conditions.

The cultivation of cannabis for medicinal purposes on a commercial basis requires a licence issued in terms of section 22C(1)(b) of the Medicines Act from SAHPRA, and a permit in terms of section 22A(9)(a)(i) of the Medicines Act from the Director-General of the National Department of Health. A license can be issued for any or all of the following activities, including to:

• grow and produce cannabis and cannabis resin;
• extract and test cannabis, cannabis resin and/or cannabinoids;
• manufacture a cannabis-containing or cannabinoid-containing medicine;
• import a cannabis-containing medicine or cannabinoid-containing medicine;
• export a cannabis-containing medicine or cannabinoid-containing medicine; or
• distribute a cannabis-containing medicine or cannabinoid-containing medicine.