Cannabis in South Africa: The Rainbow Nation Leads the Continent

South Africa is one of the few jurisdictions outside North America that has legalized recreational cannabis, albeit under very limited circumstances. Appropriately for a country belonging to the common-law tradition, legalization was not the result of a legislative enactment, but rather of a 2018 decision by the Constitutional Court (“ConCourt”) of South Africa, which partially upheld a ruling by a lower court in the Western Cape.

In its decision, the ConCourt found unconstitutional the statutory provisions that criminalized the use and possession of cannabis in private, as well as cultivation in a private place for personal consumption. This finding of unconstitutionality was based on section 14 of South African Constitution, which enshrines a right to privacy that includes the right of persons not to have their persons, homes, or property searched, or their possessions seized. However, the ConCourt did not extend the reasoning to include the purchase of cannabis, as the lower court had.

The ConCourt decision enjoined the South African Parliament to repeal the laws in question within two years. On September 1, 2020, the Cannabis for Private Purposes Bill was introduced. This bill would codify the legal framework mandated by the ConCourt decision. Consistent with that decision, selling

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