By Mary-Anne Gontsana Photo: Ashraf Hendricks
It appears police have been instructed to no longer arrest people for personal cultivation and/or possession of cannabis, according to a directive dated 23 August.
A SAPS directive signed and dated 23 August 2023 appears to instruct officers to no longer arrest people for personal cultivation and/or possession of cannabis.
In 2018, the Constitutional Court ruled that cultivation and possession of the plant for private use is legal.
In contrast, dealing in cannabis as defined by the Drugs and Trafficking Act, is still not permitted.
Though there is still no legislation that prescribes what quantities of cannabis may be possessed or cultivated for personal and private use.
The SAPS letter notes the risk of civil claims for unlawful arrest or detention if officers arrest a person for possession, use or cultivation of cannabis.
It appears that police have been instructed to no longer arrest people for personal cultivation and/or possession of cannabis. According to a directive seen by GroundUp which was signed on 23 August 2023 and on a South African Police Service (SAPS) letterhead, police officers could face “disciplinary steps” if they do not comply.
There has been confusion regarding the legal position relating to cannabis since the Constitutional Court in 2018 ruled that cultivation and possession of the plant for private use is legal. This judgment has become known as Prince 3.
But the Constitutional Court did not confirm the decriminalisation of dealing in cannabis. This means that until Parliament changes legislation, dealing in cannabis, as defined by the Drugs and Trafficking Act, is still not permitted. This includes performing any act in connection with the transhipment, importation, cultivation (other than the cultivation of cannabis by an adult in a private space for personal use), collection, manufacture, supply, prescription, administration, sale, transmission or exportation of the drug.
Referring to this ruling, the SAPS letter states: “There is currently no legislation that prescribes what quantities of cannabis may be possessed or cultivated in order to comply with the Prince judgment.
“There is also no legislation that allows for a presumption of dealing where cannabis quantities above a certain threshold is found in the possession of a person.”
Because of no definition or quantification of the concept of personal and private consumption, SAPS is at risk of civil claims for unlawful arrest or detention if they arrest a person for possession, use or cultivation of cannabis.
“Before arresting alleged cannabis offenders and the seizure of their property proceed, members of the SAPS should liaise with the prosecuting authority, where possible, to determine whether the matter will be enrolled and prosecuted,” the letter stated.
In defining a private space, the SAPS letter states that a private space is any space that the public does not have access to as a matter of right.
Examples include a person not needing to be the owner of a space for it to be their private space, and the inside of a motor vehicle is a private space. Additionally, cannabis dispensed by a traditional, cultural or religious healer in small quantities is considered to be private and personal possession.
The document states that all SAPS members have to familiarise themselves with the contents of the directive. “Failure of a member to comply with these instructions may result in disciplinary steps.”
Provincial SAPS spokesperson, Lieutenant Colonel Malcolm Pojie, said “Please be advised that we are not at liberty to respond to your enquiry nor the authenticity of the letter.”
Pojie referred GroundUp to the SAPS national media office. We are yet to get a response.
GroundUp spoke to a lawyer with expertise in the cannabis industry who said SAPS is in a precarious situation. He said the letter could be to caution officers when making physical arrests rather than have them turn a blind eye.
“My sense is that this memo is saying that err on the side of caution and unless you have good cause to believe that the person is dealing, don’t presume that the person is dealing, otherwise it could come back to bite you. What is helpful is where they define private spaces.”
The lawyer said: “Back in the late 90s, the law says if you have an x amount of a particular product, you were presumed to be dealing. But now you’ll have to have a reasonable basis for presuming.”
For example, “if there’s a lawful roadblock and they open your boot and find three kilograms of cannabis plant, carefully packaged. I think in those circumstances it would be reasonable for police to say you are not in the confines of that judgment… It is going to require discretion.”
