Think twice before you put some dope under the Christmas tree
Father Christmas may be branded a drug dealer if gifts of green make their way into stockings.
However, cannabis activists and users are willing to take that risk by giving a mind-altering gift this Christmas.
Rastafarian Gareth Prince, who led the fight for the legalisation of marijuana in SA for 21 years, said giving dagga as a gift was illegal in the “very technical sense”.
“The current definition of dealing includes collection, supply or transportation. This obviously has to change because of the ConCourt ruling, but until this is done, police can still rely on the old definition to arrest you, although they might not succeed in a prosecution,” he told TimesLIVE.
On September 19 last year, the Constitutional Court gave government 24 months to revise the law that criminalised dagga use. Activists are optimistic that the revised law will address gifting.
The post-judgment legal definition of “deal in” is “performing any act in connection with the transshipment, importation, cultivation other than the cultivation of cannabis by an adult in a private place for his or her personal consumption in private, collection, manufacture, supply, prescription, administration, sale, transmission or exportation of the drug”.
Paul-Michael Keichel of Schindlers Attorneys said a conservative police officer or prosecutor may decide, in their discretion, that gifting cannabis falls foul of the judgment, which permits personal consumption of dagga.
However a test case would be required to determine if this was legally sound.
"An analogy could be drawn with gifting a bottle of wine not requiring a liquor licence — i.e. “personal consumption”, extending to gifting of home-grown cannabis between adults," he said.
"So, yes, South Africans should think twice, unless they are satisfied with the risks they face."
The same rule could apply to other homemade “dope” gifts including creams, edibles from suckers to cakes, and pain relief products.
“However, one cannot and should not buy and then gift cannabis-based products, as that cannabis would not have been grown within the confines of the judgment. It would have been grown with the intention to sell, and one might then be said to be party to a drug deal and may, therefore, be gifting illicit cannabis,” said Keichel.
Despite the risk, Krithi Thaver, founder of Canna Culture, Africa's first legal medicinal cannabis dispensary, Holistic Releaf, and cannabis membership club, Purple Haze, is preparing cannabis-infused gifts to give his friends and family this Christmas.
“I have done so in the past and I will do so this year again. I believe it falls within the confines of the law because if I am giving someone a gift, I believe that it will be for their personal consumption.”
Charl Henning of non-profit organisation Fields of Green, said if gifting happened in a “private space, like consensual sex, it's nobody else’s business but the two parties involved”.