Legal-ish: cannabis

Quintin van Kerken, a cannabis policy expert, explains why you shouldn’t be jumping for joy after the Constitutional Court verdict, stating it’s legal to possess, use and cultivate cannabis in the privacy of your own home or a private space.


18 September 2018 is a day that I will never forget. I sat in the Constitutional Court, awaiting the verdict. We were all nervous. My submissions, as an expert witness, were amongst only a handful that were allowed to be placed on record as evidence. Years of hard (and most times unrepentant) work and extreme vocal activism had paid off, with AC Judge Zondo speaking the words, “It is now legal to possess, use and cultivate cannabis in the privacy of your own home or a private space.”

The buzz didnít last very long

Whilst this ruling places us decades ahead of many other countries and is a radically bold move on behalf of the Constitutional Court, Parliament have now just under two years to actually legislate and regulate cannabis properly.

Where cannabis dispensaries find themselves, with regards to medicinal cannabis, is a nightmare. You can grow the plants, you can process them into the various oils and products that are necessary, and then you can do nothing. 

The sale of cannabis or related products, such as oils, is still against the law. Unless, you’re willing to jump the administrative hoops that are necessary to get a permit to use it from the South African Health Products Regulatory Authority (SAHPRA), and have a  doctor that is willing to fill in and sign an equally massive amount of forms and agreements.

This poses a conundrum for someone wishing to use cannabis medicinally. The following scenario was sent to me by a colleague, and sums up the problem beautifully: 

“So, the doc says you have  cancer, untreatable and possibly unpronounceable. You find out that there are patients that have used cannabis oil which has ensured quality of life. Great! It is legal now, so you can buy it, right? 

“No!,” says the government. “You will have to grow it yourself, and extract it yourself, to use the medicine.” The problem is, even the most experienced (small scale) indoor grower will tell you it is impossible to produce the amount of cannabis needed, and then still extract it (another field of expertise completely) in that time frame. A perfect crop and pure, perfect oil first time? Never.

Constitutionally, this verdict is momentous and ground-breaking. Realistically, it’s a serious spanner in the works.

WHERE DOES THIS LEAVE PEOPLE WHO WISH TO USE CANNABIS MEDICINALLY?

If you want to use cannabis medicanally and are unable to grow it for yourself, let alone process it into an oil, personally, I don’t think there is a magistrate or judge out there that would sentence a chronic or terminal patient for buying cannabis to use medicinally.

Within a short time after the verdict, the South African Police Service (SAPS) issued orders to their members to cease arresting people for cannabis possession. They left the onus on the arresting officer to decide whether the amount the person has on them is too much, and could be considered dealing.

There have been a handful of reported busts, with police most times busting a small grower, thinking hard drugs are being sold or manufactured on the premises. These cases will be very closely watched, as the State would have to prove what amount is too much.

What does this mean for cannabis dispensary owners?

I have spoken to many dispensary owners, and many of them have noted that where they were expecting a massive spike in orders, it was more of a hiccup. Sales are steady, and each day these folk run the risk of being arrested, just like before.

The use of cannabis was decided by the highest court in the land to be a private matter, but no victory comes without its bitter-sweetness. The very people that need it right now are still unable to purchase cannabis products. But, if you get raided, and the police find that exact same product, they can do absolutely nothing, because you have the right to use, possess or cultivate cannabis in the privacy of your own home. 

We can only hope that Parliament sees the regulated sale of cannabis as a great way to fill the coffers with tax money, and passes a bill that allows for this.

Last but most important thought

I can only offer one piece of advice. Should you wish to break the law and purchase cannabis oil, make sure it is of good quality and from a reputable supplier. 

The supplier should be able to produce a test certificate, which clearly outlines the cannabinoid profile and clearly showing the percentages of THC, THCa, THCv, CBd, CBG, CBN or CBL. 

Most tests will show THC/a/v, and CBD or CBG. The test must also show if there are any residual solvents, pesticides or heavy metals in the oil.

Until then, it’s business as usual for the black market, leaving lawmakers, lawbreakers, and legal users alike shrugging their shoulders.

Quintin co-hosts a cannabis-related talk show, called DQ Central. The show focuses on responsible adult use of cannabis, and can be streamed on Facebook and YouTube.

Quintin van Kerken is a cannabis policy 
expert and is the CEO of The Clear Option, 
an organisation that focuses on treatment, research, education, advocacy and testing 
with regards to drugs and substance abuse.

MEET OUR EXPERT – Quintin van Kerken

Quintin van Kerken is a cannabis policy expert and is the CEO of The Clear Option, an organisation that focuses on treatment, research, education, advocacy and testing with regards to drugs and substance abuse. 


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