On May 28, South African President Cyril Ramaphosa signed into law a bill that legalizes cannabis nationwide, though without regulated sales. It effectively repeals what has been described as one of the last Apartheid-era laws. The bill had previously passed both houses of parliament.
Ramaphosa signed the bill the day before national elections began. With the votes now counted, his party—the African National Congress (ANC), political home to the late President Nelson Mandela and the movement that ended Apartheid—has failed to win a majority for the first time in 30 years.
Legalization has been long delayed. South Africa’s Constitutional Court ruled back in 2018 that marijuana prohibition was unconstitutional, and ordered legislative change by 2020. Lawmakers finally introduced a cannabis bill that year, but it has only now become law.
The bill removes cannabis from the Drugs and Drug Trafficking Act. Adults can grow and consume cannabis in the privacy of their homes, and give it to others as long as no money is exchanged. You can possess but not use it in public.
Buying or selling non-medical cannabis is still illegal, however; there will be no dispensaries, cannabis cafes or other types of businesses like we’ve seen in Canada and much of the United States. It’s hard to imagine that this set-up won’t lead to informal sales or trading. But as things stand, sales remain punishable with a prison term of up to 10 years. Possession of a quantity above the legal limit—yet to be determined—can lead to a sentence of up to five years. Using cannabis in a public place, while driving or in the presence of children is punishable by a 2,000 rand fine ($108).
The bill also provides for the expungment of past convictions for cannabis possession and growing, in some cases automatically, or else by the person filing an application.
The justice department will need to write additional rules to specify the maximum legal possession amount, regulations for transporting cannabis and how expungements will happen. It’s also possible that remaining criminal penalties could be revised.
“It was very much always a weapon of Apartheid. And we’ve called it the ‘last Apartheid law’ because South Africa has had 30 years for the government to realize.”
South Africa’s laws criminalizing cannabis are rooted in the Apartheid era, when the governing white Afrikaner minority imposed a system of legal segregation over the Black majority. The Apartheid regime’s 1971 anti-drug laws imposed a strict ban on cannabis, with sentences including 10 years in prison for possession of just one cannabis joint. These Apartheid drug laws primarily targeted Black South Africans, overwhelmingly for marijuana charges.
“When the laws were changing and the Apartheid people realized they could use this plant against the people, within six months of the 1971 Act there were 90,000 Black males arrested on dagga [cannabis] charges,” Myrtle Clarke, managing director at Fields of Green for ALL, told Filter. “So it was very much always a weapon of Apartheid. And we’ve always called it the ‘last Apartheid law’ because South Africa has had 30 years for the government to realize this law is sitting there doing damage.”
The laws were re-codified in 1992, during Apartheid’s last years. Clarke and her organization have spent years advocating for cannabis legalization in South Africa, and providing grassroots support to people arrested and charged. Clarke was directly involved in the pivotal 2018 Constitutional Court case.
In 1990, the Afrikaner-dominated National Party began negotiations to reform the Apartheid system. Mandela was released from prison, and the regime repealed the ban on the ANC and other political parties. South Africa’s post-Apartheid era began with Mandela and the ANC’s election victory in 1994.
But among the democratic reforms adopted, drug legalization didn’t make the cut. The ANC, which has governed ever since, kept the Apartheid drug laws on the books, and continued an aggressive policy of “militarized suppression, spraying and incarcerations” for cannabis, according to Thembisa Waetjen, a history professor at the University of Johannesburg.
Clark explained how her organization has run a victims support helpline for people impacted by cannabis criminalization since 2011. “What we try to do is coach people to be able to [defend] themselves, because you can if you know your rights,” she said. “We also have various lawyers who will do this at a reduced fee.”
“The police are definitely still intimidating people and searching their cars. Most of the time, they’re looking for a bribe.”
“Our helpline used to get 10 calls a day before 2018 [and the Constitutional Court ruling],” she continued. South African police statistics showed about 1,000 cannabis arrests per day before that year.
“Now we get maybe two or three [calls] a week. The police are definitely still intimidating people and searching their cars. Most of the time, they’re looking for a bribe.”
Analysis by the Global Initiative Against Transnational Organized Crime showed how low-level drug arrests continued to dominate South Africa’s justice system. Researchers looked at a court in a suburb of Cape Town, and studied all the cases filed over a five-month period in 2019. Over half of all criminal charges were drug-related (52 percent), and nearly all of those (99 percent) were just for possession. Despite the 2018 Constitutional Court ruling, police were still making arrests for small-scale marijuana possession.
“This high proportion of drug-possession cases passing through the Wynberg court is a good indication of how arresting people who use drugs is placing a huge burden on South Africa’s entire criminal-justice system, particularly in magistrates’ courts,” the researchers wrote. “This means the majority of proactive and street-level policing is directed towards drug-related crime. If the data from the Wynberg courts is any indication, it also means that most of this policing effort is directed towards targeting offences for drug possession for personal use, rather than the retail, street-level drug trade.”
So why did President Ramaphosa finally sign the legalization bill only now, immediately before the national elections?
“It was a political ploy,” Clarke said. “It was more of a ‘saving face,’ instead of leaving it on his desk and at the mercy of whoever’s coming next. It’s a nice thing to have in his legacy. I think there were some people in his inner circle who said, ‘You promised, you better sign this now, and not leave it to the mess after the election.’”
The final election results were certainly messy for the ANC. The party earned 40 percent of the vote—still a plurality, but its lowest share since Apartheid ended, and not enough to form a majority government.
The nature of any eventual coalition will be important for cannabis reform going forward.
Major issues dragging on ANC support have reportedly included a struggling economy, high unemployment, crime and corruption, electricity and water shortages, and even hostility to immigration from other African nations. Younger voters, born in the post-Apartheid era, also have less loyalty to the ANC than their older counterparts.
The ANC will now either have to form a coalition government or attempt to govern without a parliamentary majority. President Ramaphosa may face internal pressure from his party to resign, and at least one potential coalition partner, uMkhonto we Sizwe (led by former President Jacob Zuma), has made his resignation a precondition of any alliance.
While the left-wing uMkhonto we Sizwe won almost 15 percent of the vote, the second-largest party is the centrist Democratic Alliance, which won 22 percent.
The nature of any eventual coalition will be important for cannabis reform going forward, not least because the minister of justice—a cabinet position appointed by the president—is responsible for issuing cannabis regulations. Clarke said that while she’s not aware of any position from uMkhonto we Sizwe, the Democratic Alliance does not support legalization. “But we will try our best to get them to have a conversation.”
Photograph of President Cyril Ramaphosa in 2021 by GovernmentZA via Flickr/Creative Commons 2.0