South African Human Rights Commission Reminds Law Enforcement to Adhere to the Moratorium on Cannabis-Related Arrests

The South African Human Rights Commission (SAHRC/the Commission) has written to the National Commissioner, Lt. Gen. Fannie Masemola, of the South African Police Service to express its deep concern over the number of human rights complaints that it continues to receive in respect of the arrest of adult private users, possessors and cultivators of cannabis – particularly within the Rastafari community.

This, despite the decriminalisation of the private use, possession and cultivation of cannabis by adults, in terms of Minister of Justice and Constitutional Development v Prince 2018 (6) SA 393 (CC), since 18 September 2018; the provision of the legalisation thereof, in terms of the Cannabis for Private Purposes Act 7 of 2024, which was assented to on 28 May 2024 and published in the Government Gazette on 3 June 2024; and the moratorium placed on such arrests made by members of the South African Police Services (SAPS), since 23 August 2023, through a directive issued by the National Commissioner for SAPS entitled, ‘Arrests by the South African Police Service for Cannabis – Related Matters’.

The SAPS directive recognises that neither legislation nor regulations prescribe the quantity of cannabis in the possession of, or cultivated by, an adult that may be presumed to be dealing in cannabis, which is still unlawful. Therefore, as things stand, this directive directs that adults may not be arrested on the presumption of dealing in cannabis either. The Commission, therefore, urges the Department of Justice and Constitutional Development to draft regulations for the Cannabis for Private Purposes Act, in consultation with the Rastafari and other cannabis-using communities; as well as to advise on a specific commencement date for the Cannabis for Private Purposes Act, which has yet to come into effect.

As the festive season approaches, the Commission reminds law enforcement – in particular SAPS and the National Prosecuting Authority (NPA) – that the arrest and/or prosecution of adults for the private use, possession or cultivation of cannabis, as well as making assumptions about dealing is inconsistent with both the law and national operational directives. Such arrests and/or prosecutions could lead to human rights violations being perpetrated by law enforcement.

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