On the eve of the May 27 general elections, which saw the ruling African National Congress lose its majority for the first time in 30 years of South African democracy, a major change to the country’s drug laws slipped through, barely noticed by most.
Just one day before the historic ballot, President Cyril Ramaphosa signed the Cannabis for Private Purposes Act, making South Africa the first African nation to legalise the use of marijuana.
The bill removes cannabis from the country’s list of outlawed narcotics, meaning adults are now free to grow and consume the plant (except in the presence of children). The bill also stipulates that those who broke the law by committing such deeds should have their records automatically wiped clean. However, it is unclear how this will take place or when and if any of the 3,000 people in prison for cannabis-related offences as of 2022 will be released.
But after years of campaigning and negotiations, activists say the fight is not over yet.
“[Ramaphosa] finally found his pen at last, and cannabis is no longer classified as a dangerous, dependence-producing substance in South Africa,” Myrtle Clarke, co-founder of Fields of Green for ALL, an NGO which campaigns for cannabis reform, told Al Jazeera from Johannesburg.
“Now we can move on to what to do about trade, which remains illegal.”
Unlike other countries where cannabis has been legalised, such as Malta, Canada and Uruguay, there is still no way to lawfully acquire it in South Africa as a casual smoker unless you grow it yourself. Selling cannabis remains illegal unless it is for medicinal purposes and has been prescribed by a doctor.
“What the bill effectively does is if for some reason you get caught with some amount of cannabis that a policeman thinks is too much for your personal use, you can’t be charged as a drug dealer,” Clarke explained.
In other words, it is theoretically fine to have a forest of pungent plants in your back yard, so long as you do not profit from it. Still, a huge grey market already exists.
The new legislation has been six years in the making. After a 2018 court ruling that private consumption of cannabis was constitutional, the government was told to prepare legislation which would legalise it within two years.
Since then, shops and dispensaries have been selling the drug under Section 21 of the Medicines Act, which allows for “unregistered medicines” if prescribed by a doctor. The 2018 ruling meant that cannabis could be included in this list of unregistered medicines.
“We don’t have any trouble from the cops at all,” the proprietor of one such dispensary in Durban told Al Jazeera on condition of anonymity.
“Only if you’re selling to underage kids, or you’re selling something other than weed, like some places sell shrooms [magic mushrooms]. Other than that, we actually have some cops who come here to smoke and they actually protect us.”
However, uncertainties in the law have led to a few of these dispensaries and “private members’ clubs” (operating under the principle of “private consumption”) being targeted by authorities. The Haze Club (THC) in Johannesburg, a collective of cannabis growers operating on private premises, for example, was raided in 2020, and legal proceedings continue.
“These dispensaries are everywhere in South Africa,” added Charl Henning, another member of Myrtle’s team.
As speculation over this legislation picked up pace late last year, more and more have opened.
“They’ve mushroomed up in the last six months: there’s been more clubs and shops opening than ever before, they’re literally saturating the market, and now they don’t have a law to arrest them on. Trade is everywhere already. We just need to regulate it.”
‘Dagga’: An old tradition
Southern Africa has one of the world’s longest histories with cannabis, which was likely introduced to the continent by medieval Arab merchants. By the time Dutch settlers landed in what is now Cape Town in the mid-17th century, they found the native Khoisan people puffing on the peculiar plant, which the Khoisan (and consequently the Afrikaners) called “dagga” (pronounced “da-kha”).
The weed had a variety of uses: Zulu warriors smoked it to ease their nerves before battle and it provided pain relief for Sotho women during childbirth. European settlers even began cultivating the crop to keep their non-white workforce “happy”, though few indulged themselves.
The colonists did not particularly care about the natives smoking dagga out in the bush, but in the 19th century, Indian labourers, locally known as coolies, were brought over to work on sugarcane plantations. The settlers started to believe that ganja, the word for cannabis in South and Southeast Asia, was making them “lazy and insolent”.
Dagga had not been an issue before this, but the Indians were living in closer proximity to white settlers and the smoke was wafting through their windows, so an 1870 law banned the selling of dagga to coolies.
Anxiety about the use of dagga mounted in the 1900s as Black South Africans arrived en masse in urban centres from the countryside and fears grew that the white working class, too, would “fall to the water-pipe … lying amid a strews of coloured people and criminals who batten on them as useful mediums for criminal acts”, as The Sunday Times put it in 1911.
And so, in 1922, South Africa imposed a nationwide ban on selling, growing and possessing the plant, and called for it to be outlawed globally.
After World War II, the National Party came to power and imposed apartheid. White South Africans of Dutch and British descent were afforded huge privileges over the rest of the population, who were segregated and denied the right to vote, own land or intermarry.
In 1971, the apartheid government passed the Abuse of Dependence-Producing Substances and Rehabilitation Centres Act, which it boasted was the toughest drug law in the Western world (at the time, South Africa was an ally against communism in the Cold War and the apartheid regime was often considered part of the West). Its effect was most keenly felt in the segregated townships, where arrestees could risk jail spells of two to 10 years for possession of a single marijuana joint.
However, rural areas were largely left alone, especially in the Eastern Cape where, in the absence of basic public services or opportunities, marijuana became a pillar of the local economy, forming what came to be known as South Africa’s “dagga belt”.
The 1971 law was replaced by the 1992 Drugs and Drug Trafficking Act, and although apartheid ended not long after, the new government kept the same legal framework. Police helicopters did flybys over the dagga fields of the Eastern Cape, spraying them with toxic herbicides.
Legalisation litigation
This so-called war on drug raged until 2017, when the Western Cape High Court ruled on a case brought by Rastafarian lawyer Ras Gareth Prince, who had been arrested with his family for growing dagga in 2012. The court declared that the prohibition violated his right to privacy, a claim ultimately upheld by the Constitutional Court in 2018. Arrests plummeted over the next few years, and in 2023, the South African police officially ordered its officers to stop making “pot busts”.
The court set the government a two-year deadline to rewrite its laws accordingly. But despite repeated promises by President Ramaphosa that South Africa would soon reap the rewards of a new industry, the deadline was pushed back, again and again, before finally being written into law last week.
It is imperfect, but Myrtle considers it a start. “We’ve had such a fight on our hands with the [cannabis] community because there’s some people that have just decided [the new law is] just far too flawed,” she said.
“Over the last three or four years since they’ve published the first draft of the bill, there’s been like five different versions. The last version of the bill was half the length and 80 percent better than the version before it. So we just decided to accept it with all its flaws, instead of having to go back to these parliamentary portfolio committee meetings where you’re given 15 minutes to state your case. We didn’t really win in the end, but we got the bill published which means we can move forward.”
Clarke says the fight now is to actually regulate trade. This means overcoming perceptions among conservative sections of society that cannabis is still a dangerous drug. Clarke accuses lawmakers of ignorance and pandering to long-held prejudices.
“We always laugh and say the government thinks we smoke the leaves [which has no effect], but it’s true,” she says.
But Steve Rolles, a policy analyst at the UK-based Transform Drug Policy Foundation, believes South Africa’s cautious approach might help it avoid a situation like Thailand’s, where a backlash is threatening to undo the reforms of recent years.
Thailand removed cannabis from its Narcotics Act in 2022, and thousands of quasi-legal dispensaries opened across Bangkok and the tourist hotspots overnight. For some, it was too much, too fast. A moral panic ensued, and lawmakers are now threatening a U-turn.
“It was the lack of planning for regulated sales that created the chaotic retail market there – and in turn provoked the backlash,” he explained.
“The more considered regulatory proposals in South Africa, that do not allow commercial sales, mean that we will not see the same problems Thailand has experienced.”
A domino effect?
“This is a first for Africa so we will need to wait and see how well it works,” Rolles says.
While a few African countries like Malawi have legitimised medical marijuana, and others such as Ghana ended penalising minor quantities for personal consumption, South Africa is the first to allow recreational use.
Elsewhere on the continent, Morocco allowed the use of cannabis for medical and industrial purposes, such as the use of hemp in fabrics, in 2021. But with a centuries-long tradition of smoking for relaxation, full legalisation is now very much part of the public debate, with cannabis farmers and investors holding public debates with MPs on the issue.
One country closely watching the developments in South Africa is Eswatini, formerly known as Swaziland, a tiny landlocked kingdom surrounded by South Africa and Mozambique. Cannabis, locally known as insangu, is currently banned there under a British colonial-era law, which the government is now considering revising.
For decades, smallholder farmers in the kingdom have survived by illicitly exporting insangu, including a prized strain known as Swazi Gold. But now, developments in South Africa are threatening to shut them out of their livelihoods.
“We believe that the legalisation of cannabis in South Africa has created unequal economic participation in one of Africa’s biggest markets and thus will result in our local growers losing traditional cultivation practices and the loss of our indigenous genetics [strains],” said Trevor Shongwe of the Eswatini Hemp and Cannabis Association (EHCA), an informal union of cannabis growers.
While the business itself remains underground in South Africa, lifting restrictions on home cultivation has given growers the opportunity to produce potent strains on an industrial scale, inevitably reappearing in dealers’ inventories and squeezing out Swazi produce.
“Most of these rural people regard cannabis as the number one cash crop, which offers them means of survival in poverty-stricken, poor, rural Eswatini.”
Shongwe believes the only way out is for Eswatini to legitimise its domestic market and trademark its Swazi Gold strain, the same way that tequila and mezcal can only come from Mexico.
“There are currently no legal pathways to use for such production at the moment. Our local rural cannabis legacy farmers can thrive economically only when and if cannabis can be legalised in Eswatini as well as legal reforms aimed at empowering them are put into action.”
