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The use, possession of dagga soon to be written into law.

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Criminal records to be scrapped.

During September 2020, the government published the draft Cannabis for Private Purposes Bill for public comment. This was in reaction to the landmark Constitutional Court ruling, in September 2018, which determined that it is not a criminal offence for an adult citizen to use, possess or grow cannabis in private for personal consumption.

The court further ruled that Parliament must, within 24 months, from the date of the judgment bring the ruling in line with its judgment. The committee of Parliament that is working on the bill hope that the new Bill will be passed during the 2022/2023 sitting of Parliament.

What is the legal amount of dagga?

In the court judgment it placed no limits on the quantities that adults would be allowed to carry, consume, or grow and said that it would up to the legislative arm of government, our parliament, to make those decisions.

The draft Bill is named, Cannabis for Private Purposes Bill. The Bill outlines possession rules for Cannabis users at home as well as for people who wish to cultivate the plant. It also introduces new offences and makes provision for people who previously received a criminal record for cannabis possession.

Some of the most important objectives of the proposed Cannabis for Private Purpose Bill is to:

1.       Respect the right of an adult person to possess, consume, smoke, and cultivate cannabis; 

2.       Protect adults and children against the harms of cannabis;

3.       Provide for the expungement of criminal records of persons convicted of possession or use of cannabis.

Where can cannabis legally be smoked?

The proposed Cannabis Bill also provides certainty what constitutes a private place where cannabis users can “legally” smoke. A private place is defined as a place to which the public does not have access to as a right, such as a building, house, room shed, hut, tent, caravan, mobile home, boat, or land.

Is growing dagga illegal?

The Bill allows a person to have unlimited seeds and seedlings, 4 flowering plants if you live alone or 8 for two adults and 600 grams of dried cannabis if you live alone or 1.2 kilograms in homes with two or more adults.

Growers of cannabis were fearful to assist others to grow their own cannabis. This fear has been removed. In terms of the bill adults will be allowed to exchange 30 seeds or seedlings, one flowering plant and 100 grams of dry cannabis.

In terms of the proposed bill, you will only be allowed to have a maximum amount of 100 grams in public, but it must be concealed from public view.

Smoking cannabis in public can land you in jail

Please be aware that the Bill proposes that smoking cannabis in public and in the presence of any non-consenting adult could land you in jail for up to two years. The sentence is even more severe when smoking in the presence of children. You could be sentenced to a maximum of four years imprisonment. Also, smoking cannabis in a vehicle on a public road is an offence and selling cannabis to a child could land you in jail for up to 15 years.

Dagga convictions automatically cleared

One of the most important implications of the Bill is that the criminal record of an individual, who was convicted for the use and possession of cannabis, will be automatically expunged (cleared).

Should you have a criminal record for the use and possession of cannabis, and it was not automatically expunged (as envisaged by the bill), you can apply in writing for your criminal record to be expunged. When you receive the certificate of expungement you must submit the certificate to the head of the Criminal Record Centre of the South African Police Service which is situated in Pretoria.

It is the responsibility of the Criminal Record Centre of the South African Police Service to expunge the criminal record of a person if they are furnished with the certificate of expungement. Thereafter, the Criminal Record Centre of the South African Police Service must, on the written request of an applicant, confirm that the criminal record of the person has been expunged.

You can contact the Faure & Faure Inc. legal team for assistance in this regard. (Email: contact@faurefaure.co.za)

Criminal record for use and possession of cannabis and the 10 year rule.

Following our previous article on this topic, we have received multiple enquiries from clients who are desirous of having their criminal record expunged. However, in the majority of the cases, the period of 10 years, as prescribed by the Criminal Procedure Act, Act 51 of 1977, has not yet passed. This effectively meant that many applications for expungement went up in smoke.

Section 8 of the Bill provides that the criminal record must be expunged automatically by the Criminal Record Centre of the South African Police Service, and no provision is made for a specific time period that must pass in order to qualify for such an expungement.

Although this provision might seem to bring relief to many, the Bill has received widespread criticism from various stakeholders and there is still a lot of work to be done by the committee of Parliament tasked with bringing the legislation in line with the Constitutional Court’s judgement. As they say – only time will tell.

Article written by Faure & Faure Inc Director, Lloyd Fortuin and candidate attorney, Husain Shaik. Comments by Inge Johnson (Conveyancer & Attorney).

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