Since the landmark September 2018 decision by the Constitutional Court in the Prince judgment, the use or possession of cannabis in private by an adult person for his or her own consumption in private and the cultivation of cannabis by an adult in a private place for his or her personal consumption in private has been effectively decriminalised and the Court declared those provisions of the Medicines Act and Drugs Act which, amongst others, limited adults' ability to use, possess or cultivate cannabis in private and for personal consumption unconstitutional. However, the Court also ordered Parliament to correct these invalidated provisions within 24 months from the date of the judgment. With less than a year to do so before this time-period expires, and no clear indication as to what these new laws may entail, the question now is, what does the future hold for cannabis regulation in South Africa? While there are rumours as to the contents of the new legislation, even at this late stage, Parliament has yet to formally introduce a draft Bill addressing the Court's order.
Interestingly, this will not be the first time that Parliament will have to deal with cannabis-related legislation. The Medical Innovation Bill, which was introduced as a private bill by the late Dr Oriani-Ambrosini in 2014, also did so. The Bill, amongst others, promoted innovation in medical treatment and the legalisation of the use of cannabinoids (cannabis compounds) for medical purposes and, notably, for beneficial commercial and industrial use. In terms of this Bill, no one was to be held liable for growing, processing, distributing, using, prescribing, advertising or otherwise dealing with cannabinoids for purposes of treatment and commercial or industrial uses or products identified by the Minister of Trade and Industry. Ultimately, however, the Medical Innovation Bill was rejected, amongst others, since, at the time, the Medicines Act already provided a legal framework for the use of cannabis for medicinal and research purposes.
Parliament may use the Medical Innovation Bill as a starting point in formulating its draft legislation, thus facilitating the commercialisation of certain cannabis products. Public sentiment towards cannabis usage, which has become increasingly positive, may also influence Parliament's approach to the new Bill, particularly through the public participation process that legislative drafting involves.
Greater acceptance of cannabis by the public, and the exploration of its commercial potential, has already undoubtedly played a role in the regulation of cannabidiol (CBD), a cannabinoid. The Minister of Health recently excluded certain preparations containing CBD from the Schedules to the Medicines Act in certain instances, and in so doing greatly reduced the amount of regulation that CBD products are subject to, and in turn, promoted their commercial viability.
Ultimately, while we do not know how Parliament will approach the new Bill, ideally the recent developments in the regulation of cannabis and CBD, and the increased level of public approval in this regard, will play a role in the drafting process, and may well result in a Bill that facilitates the development of the budding cannabis industry in South Africa.