Private cannabis bill will punish adults who use in front of children

The private use of cannabis is a step closer to be being legalised, but there are strict rules when it comes to minors, including a fine should one use cannabis near a child.

The National Assembly passed the Cannabis for Private Purpose Bill this week after it was introduced to parliament on September 1 2020.

This comes after the judgment in Minister for Justice and Constitutional Development and Others v Prince which focused on the right to privacy of adults using cannabis for private purposes.

Once the bill comes into law, it would mean cannabis users can cultivate and use cannabis in their homes. However, strict rules are in place for minors with regard to the interests of a child.

Section 3 of the bill, which is dedicated to the protection of minors, states no adult should knowingly permit a child to use or possess cannabis. Adults are also prohibited from supplying a child with cannabis or a product which contains it, and may only administer cannabis if prescribed by a medical practitioner.

While adults are permitted to grow cannabis at their homes, they are required to take measures to ensure it is not accessible to children.

Should a minor be in possession of cannabis due to an adult, the adult could be liable to a fine or a maximum of 12 months imprisonment or both. Engaging a child to deal in cannabis could also lead to a fine or 10 years maximum imprisonment or both, while 12 months imprisonment or fine is imposed on adults who administer cannabis to a child without a medical prescription.

In addition, adults are prohibited from smoking in the immediate presence of children or they face a fine not exceeding R2,000.

Should a child be found in possession of or dealing in cannabis, they will not face the criminal justice system but will be dealt with in line with the Children’s Act, the Prevention of and Treatment from Substance Abuse Act and any other legislation.

The bill is not clear on how adults should cultivate cannabis to ensure it is inaccessible to children.

“If you look at it practically, one of the reasonable measures to be contemplated in the bill will be erecting of a fence or some sort of shed, depending on circumstances on a case-by-case basis, while obviously taking into account the age or maturity of a child. For example, when it comes to a 16-year-old, there are situations where a fence wouldn’t be reasonable to prevent the child from being accessible to the cannabis,” said associate at Webber Wentzel law firm Daveraj Sauls.

Such issues could be addressed by minister of justice Ronald Lamola as the bill provides that he may prescribe any matter necessary to achieve the objectives of the bill.

“I think some issues can be addressed by the minister by way of regulation, including the practicalities of the bill to assist its effective implementation.”

It will be debated by the National Council of Provinces before it is presented to President Cyril Ramaphosa to sign into law.

“Seeing it is a bill and not in force yet, I think this might give some indication of potentially what the act might regulate and to what extent,” Sauls said.

Cannabis activist and one-half of the Dagga Couple, Myrtle Clarke, said the bill’s provision that cannabis should be stored away from minors does not seem to apply to alcohol, which she says is more harmful than cannabis.

She said this creates “hysteria” and stigma about the use of cannabis.

“We can’t be expected to lock up cannabis out of sight of children and we are not expected to do that with alcohol. The hysteria about the harm of cannabis on children and rules and regulations need to be the same with alcohol on the scale of harm.”

She said children in rural areas work in fields and often cultivate cannabis and hang it in their homes to dry.

“Rural children haven’t seen an epidemic of dagga psychosis. It is the stigma about cannabis which drives this type of archaic thinking,” she said.

Sauls said the bill missed an opportunity to regulate the large commercialisation of cannabis. While the bill prohibits street dealing in cannabis, he said there is an economic advantage in cannabis being commercialised as medicine.

“The bill is limited to the right to privacy and the Constitutional Court judgment but at the same time it’s missed an opportunity to capitalise on the economic advantages of cultivating. There is nothing addressing the commercialisation of cannabis,” he said.

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