From the landmark 2018 Constitutional Court win to the confusing “grey market” of shops popping up today, South Africa’s relationship with Cannabis is anything but simple. Myrtle Clarke, Managing Director of Fields of Green for ALL and one half of the legendary “Dagga Couple,” has spent over a decade at the frontlines of this legal battle. Whether you are confused about the legality of private clubs, curious about the difference between hemp and cannabis, need to know your rights during a police interaction or are curious if there are actually any health benefits, @Myrtle_Clarke is on DMC to provide clarity.
Post your questions below and let’s clear the smoke around the future of Cannabis in SA.
So where is cannabis use and sale illegal?
I am curious about whether there is research around impairment in ability to drive (and operate other machinery) similar to what is known regarding alcohol. Do we know dosage limits for driving after use of cannabis? Is there a quick way to measure how much sometime has in their system (akin to breathalyser for alcohol)?
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Hi. With many local employers still applying blanket bans on testing positive for cannabis use, regardless of job description, and multinationals applying US legislated cannabis use, it appears that our decriminalisation still leaves any working person pretty much exposed to legal vagaries and hence, discrimination.
Does the law require greater definition, or does the matter lie with sparse precedents in our courts?
In South Africa, the use of Cannabis is legal within private spaces. What constitutes a private space is very broad but, basically, any place that the public does not have immediate and unfettered access to. However, the use of Cannabis in the same space as unconsenting adults is not legal. The use of Cannabis by anyone under the age of 18 is also illegal but there are no criminal penalties for minors, following the case by the Centre for Child Law.
The sale / trade of Cannabis is ILLEGAL in South Africa. Yes I know there are pot shops on every corner but those with the resources can get around the law in various ways.
Thanks for your question Heather. Myrtle
Yes, as Cannabis is the most researched plant on the planet, there are countless studies around impairment when driving. However, none of these studies is conclusive as to how to measure impairment. The thing with Cannabis is that being “stoned” is very, very different to being drunk and every single person reacts differently. Hence the measurement challenges. Currently there is no valid and reliable test available to determine impairment from Cannabis among drivers. Cannabis also stays in the system for around 30 days and is the reason we won the Labour Court issue in 2023. Someone might have a spliff on the weekend (their constitutional right) and test positive through a mouth swab or blood test on a Wednesday. No matter the limit set by regulations, the delivery method will also skew the test - smoked Cannabis will show a lower reading than oil, for instance.
We always advise people not to drive for 2 hrs after smoking but that’s just a thumb suck.
This is a great question Lesley, wish I had a more definitive answer! A great source of info is the research from the University of Minnesota (random varsity, I know, but they have done the most rigorous research on driving) here: https://www.sph.umn.edu/research/centers/cannabis/research/cannabis/summaries/
Yes Kirsten, we were pleased that the SAMJ published that but the issue remains that “correlation does not equal causation” and it is impossible to test actual impairment. Balancing our constitutional rights with workplace safety is a very serious issue. The best would be if the powers that be could come up with a test that establishes whether the individual has consumed Cannabis within, say, the last two hours. We have heard of a roadside test in Australia that supposedly does this but when it will come to SA and how much it will cost is another story. We have the Labour Court of Appeal judgment from 2023 but it might need to be tested in court again to fine tune the balance. This is one of the areas where the focus should be, instead of running around locking stoners in cages but, as with everything, we have a long way to go.
Thank you. That is helpful.
The driving thing has been bothering me.
Hi Myrtle, Thanks for the opportunity. I live in a 8-unit Sectional Title block with three exclusive use gardens/patios. One of these is directly below me and interfaces four flats (windows mainly). A new owner who moved in a year and half ago was smoking marijuana joints every single morning and evening. The direction of the smoke is directly into my windows and evidently others, and is extremely pungent. I can even smell it when my windows are shut and it can be smelt right around the block. I put up with it (unhappily) as I know it’s legal but eventually a tenant complained to me as an ex-Trustee regarded as reliable. I tried to handle it between us three to reach a compromise to reduce use to more occasional recreational use. I made it clear there was no moral judgement on my side. Just unpleasant smell in my flat. I shared all the relevant legislation including Body Corporate legalities around ‘nuisance’ to others in common spaces and asked for policy clarity. I also pointed out that sometimes our entire lobby areas smelt of it for hours when he smoked inside when wife was away. I was met with a somewhat bad attitude so referred it to the current Trustee Chair who later told me he (user) was told to smoke elsewhere, not here. The day the first complainer moved out of our block, however, he began again, but more infrequently. I have reported it to the Trustee but am reluctant to be named in fear of stigmatisation, as I am the only elderly person here. The Trustee isn’t bothered to be assertive without a formal complaint. I did request BC rules to be clear about policy but Trustees are too lazy to attend to such things. I now burn insence to help me cope when he smokes. But it’s an irritation. Your advice?
Yes, the law certainly requires more definition but I should imagine that will only be after we get broader legalisation - the so-called “Cannabis for all Purposes Act”. I should imagine that Labour laws around Cannabis can’t skate on one precedent forever. And the resources required to test every case on its merits is wholly unsustainable.
What really gets us is that it is rarely CEOs or CFOs who are fired, it’s lowly workers who overwhelming bear the brunt. Anyone who comes to us at Fields of Green for ALL with a labour issue has access to lawyers who will work for a contingency fee but it is a long and arduous trudge through the courts and few have the stamina. Again, as I answered in another question, those with the power to shape the law are most interested in all the money to be made and there is scarce attention being paid to these fundamental issues. onwards we go! thanks for your question Hans.
Thanks . How does that apply to complexes?-I ask because a family member smoked pot in our exclusive use garden and the body corporate complained. There are pathways and trees separating each unit in our complex