The Directive Unboxed

By |Published On: September 6th, 2023|

By now, you have most likely seen the Police Directive on Arrests by the South African Police Service for Cannabis-Related Matters circulating on your preferred social media platform. Dated 23 August 2023 and signed by some of the top brass, it did not take long finding its way into the Cannabis Community. It will hopefully provide the necessary insulation from police discretion.

We have waited about two months since the Cannabis Phakisa Action Lab for some news around Dagga Arrests. The first few weeks following the Lab saw many bold exclamations about an impending moratorium on arrests. This never materialised. Last month we saw some full-colour bit of mis-communique-tion doing the rounds in Gauteng. Now, we have something hinting at positive change – a murmuring hope that perhaps we are about to see Dagga Policy Reform in truth. 

Our Myrtle Clarke (of the Plant) and Paul-Michael Keichel – part of our Legal Team of Green at Cullinan & Associates – got together on 5 September to unpack what this latest Directive changes. Video below.

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CLOCKWORKS

We are in agreement across the Cannabis Sector that this latest Directive is good news. It shows our overlords are listening. Indeed, they are finally showing an interest in the evidence we have been doling out to them these many years we have collectively been in this fight. Despite their slow pace, the steps following the Phakisa seem to be gaining some speed. 

However, as Paul-Michael points out, the Directive both does and doesn’t change things. He highlights that the police are only now receiving the correct guidance on Cannabis-related matters, five years since the 2018 Constitutional Court ruling. “[It] could and should have followed sooner, given the continuing arrests that we’ve all been shouting so loudly about”. 

Of course, this is not the first Directive since 2018 – Myrtle points out that if folks facing the law email our #StopTheCops Arrest Helpline, they will receive both the 2019 Directive on Cannabis-related matters and the 2019 General Directive in an automatic reply. Our helpline is unfortunately a testament to what happens when police officials remain ignorant – wilfully or otherwise – of these directives. 

This Directive is addressed to the various heads, commissioners, and commanders, as well as the Minister of Police. From training right through  to the top, there is NO EXCUSE to be had that this Directive has not been received nor understood by ANY SAPS official in our land, HAWKS included. 

To ensure this, paragraph 7 makes clear that this “circular must be brought to the attention of all members under your command against their signature and filed as proof that such members familiarised themselves with the content”.  Paragraph 8 warns that “Failure of a member to comply with these instructions may result in disciplinary steps.”

The Directive is circulating on both social media and official news sources – so even if there is some negligence on the part of SAPS officials, there is robust public proof that this circular is in effect. We strongly recommend keeping hard copies in your home, vehicle, business, and/or on your person.

It would, of course, be helpful if the Directive were issued in ALL 11 written languages, not merely the preferred business language. Language Rights are Human Rights.

CONFUSION  

Paragraph 1 provides little by way of new information, but it does clarify some core points while lacking some, too. Recognising the “confusion as to the legal position in relation to cannabis”, the Directive clarifies that we may indeed use, possess, and cultivate in private and that “dealing in cannabis is not permitted therefore commercialisation of cannabis still not legal in South Africa”. 

This paragraph also discusses the expansion in the Drugs and Drug Trafficking Act 140 of 1992 following the ConCourt ruling that excludes “cultivation of cannabis by an adult in a private place for his or her personal consumption in private” from the definition given to “deal in”. 

Paul-Michael does clarify that Minister of Justice Ronald Lamola endorsed the relief that this should be extended to minors, to ensure they are not criminally punished. Of course this follows the Constitutional Court ruling in 2022 concerning the Centre for Child Law stating that children cannot be criminalised for Cannabis. 

Myrtle and PM also highlight that non-consenting adults should not be exposed to Cannabis, much the same as one would not be sharing with minors as a responsible adult user. 

CONTRADICTION

Paragraph 2 is a contradiction in terms, stating: “Cannabis is still listed as an undesirable dependence producing substance in Part III of Schedule 2 of the Drugs and Drug Trafficking Act.” 

This insistence continues that wily prohibitionist stance in policy that determines what we may and may not choose to consume as responsible adult users of the Plant. Oddly, this same Act, alongside the Medicines Act of 1965, makes provision for Dronabinol, which is really just the pharmaceutical name for THC. Go figure. 

Pivoting, and proving how that wily prohibitionist stance is exploited by the present policies, the paragraph continues to discuss that the South African Health Products Regulatory Authority (SAHPRA – hiss, spit) and the Department of Agriculture, Land Reform and Rural Development (DALRRD) may issue licences and permits to cultivate for research and medicinal purposes or for limited purposes, respectively. 

Myrtle makes no bones about mentioning the points between this and the Section 21 access some have chosen to enjoy – we will be covering this very topic soon enough. In the meantime, do be aware that many of the claims around the legality of Section 21 Cannabis are not accurate.  

The topic of the unicorn permits for cultivating hemp as well as the licences issued by SAHPRA was thoroughly deliberated at the Cannabis Phakisa. We know that the developments around these will directly impact this sunrise sector, and good policy is absolutely needed if we are to see benefit to the Plant’s custodians. The police should be reminded of the various Cultural, Traditional, and Religious relationships with the Plant as well, not merely those driven at profit. 

COUNTING

This is a personal favourite for a few reasons. It addresses Crisis Point 3: Plant Counting and Thresholds – while illustrating that evidence-based approaches can indeed be applied when the will to do so is present. 

Significantly, the closing sentence to this paragraph emphasises the 1996 State v Bhulwana ruling that corrected an unconstitutional reverse onus of the presumption of dealing – or in normal language, no person is guilty of dealing until proven to be so. 

Ultimately, without evidence, we cannot be arrested on suspicion of dealing no matter the number of plants or plant material in our possession. 

These two paragraphs do indeed hold promise of reduced law enforcement harms. The Cannabis for Private Purposes Bill, if enacted in its present state, “will add an additional onus on Traditional, Cultural and Religious leaders, to issue the requisite permits to members to cultivate and possess required quantities of Cannabis for Traditional, Cultural, and Religious uses” warns Etienne van Zyl, the Drugged Policy Anthropologist.  

CAUTION

Paragraph 4 carries on from the third. It states plainly that due to there existing no “definition or qualification” on “personal consumption” the SAPS “is at risk if they arrest a person for possession, use, or cultivation and such matter is not enrolled, struck off the roll, or otherwise does not result in prosecution.” 

We know ALL too well that rogue officers will take what they can for themselves, abusing their powers to “shake civilians down” in the words of Paul-Michael. 

This is really where we can #JustSayNo!

It must be noted also that Section 7.6 in the Cannabis Directive released in January of 2019 outlines that “If the police official is in doubt as to whether the quantity of cannabis found qualify as personal consumption, he or she must not arrest the person […] but should rather register a criminal case dockets and ensure that the person is brought to court by means of a summons or written notice”.

Standing up to corrupt officers is hard, but not impossible. We have always encouraged people to reach out to us rather than pay the bribes and give into extortion. Myrtle’s plea is that of the team at Fields of Green for ALL – we can only help you if you are willing to say NO! 

The paragraph closes with the warning that abuse of power “exposes the SAPS to civil claims for unlawful arrest and detention.”

Indeed, the 2019 General Directive was issued in part to reduce the gross costs incurred through unlawful arrests and police action. While not directly related to Dagga, a recent article in the Daily Maverick illustrates why Directives such as these are a boon for police expenditure. 

CONSIDERATION

The fifth paragraph offers guidance on how members of law enforcement must act when apprehending someone suspected “in relation to an offence involving cannabis”. Suspects “must be treated with dignity and in compliance of the prescripts laid down by the law”. It is our constitutional right to be treated well by officers of the law; we are Constitutionally protected by the Bill of Rights in our Constitution.  

Again, in ensuring the accused is present at court, all lawful means “need to be considered before resorting to arrest and detention”. This means that a summons or written notice must be the first options, NOT arrest. 

Should one be required to appear in court, the summons or written notice needs to include “the name, residential address, occupation and status for the accused […] to ensure his or her appearance in an identified court on a specific court date.” 

To make this effective, the officers involved must register a criminal case docket and the Cannabis (and other exhibits) “must be seized and booked into the SAPS 13.” Yes, this means that officers are duty bound to not allow seized Cannabis to find its way out of the evidence locker. 

Before arrest or seizure of property, paragraph 5.1 outlines that “members of the SAPS should liaise with the prosecuting authority […] to determine whether the matter will be enrolled and prosecuted”. This is a big one. We ALL know that countless members of our community are arrested and effectively robbed of their Cannabis and property only to have their case struck from the roll. 

To “ensure that the process is subject to judicial oversight and the rule of law” the paragraph also advises that officers “obtain a search and seizure warrant beforehand, before such operations are conducted”. 

Myrtle, out of the very personal experiences that set her on the path to lead us toward Fields of Green for ALL, expresses some hope that this will help end the 2 am raids on private properties on Thursdays. 

Paul-Michael does point out that the National Prosecuting Authority and SAPS are something of a “conjoined twin”when it comes to criminal justice.  He explains by way of rhetorical questioning, that “if the NPA communicates very effectively with the SAPS that […] they’re not creating a demand for cannabis arrests and prosecutions, well then, what demand would SAPS be supplying?”

He clarifies that we may create a feedback loop through which petty Cannabis arrests can become something of the past, while larger quantities will likely be more related to more dubious entities.

It remains clear that several laws still need to change if we are to see a total stop to arrests by the SAPS for Cannabis-related matters. As many whispers as we may hear about the necessary law changes being underway, we cannot be certain of, nor even that, these will change the status quo we face with our blue clad and armed foe.

The NPA is not responsible for handing down a directive to stop arrests, Paul-Michael explains. Their decisions lie on what is and is not a crime. Ultimately we need to change the Drug And Drugs Trafficking Act of 1992 if we are to see Cannabis prosecutions stop. 

CRISIS AVERTED

The sixth paragraph holds reasonable cause for celebration across our Cannabis Community. It clearly states “No arrests are to be made for personal and private cultivation and/or possession of cannabis”. 

The paragraph further addresses arrest quotas, pointing out that “no arrests of alleged cannabis offenders should be effected merely for the reason to achieve pre-determined targets”. In essence, this means that we should finally see a change in the profiling and targeting of anyone sharing a relationship with the Plant by officers trying to make up the numbers set out by their station commanders. 

Myrtle refers to discussions over Africa Policy Week on drug arrest quotas and how they lead to incredible human rights violations. Herein we need to consider, in the spirit of drug user solidarity and harm reduction, how the shift of focus from “easy” Cannabis arrests to other drugs will affect those users and their communities in turn. We will look at this more closely in another article. 

The sixth paragraph also defines a private space as “any space that the public does not have access to as a matter of right”. Public spaces like parks, beaches, and roads are not private, as clarified by Paul-Michael and Myrtle both. Private spaces are those where rights of admission are reserved, extending to homes and businesses, too. The paragraph, to lend clarity, breaks down what kinds of parameters define such a space by way of example. 

Private spaces do not require “a physical barrier preventing access” and do not need to be owned by the occupant (insulating renters). These first two points are significant as not all private spaces can be closed off affordably while many private spaces are rented, too.  For the first example, Paul-Michael draws focus to those living in townships now having the right to claim their properties as private even where barriers are not present. Myrtle further clarifies that while rental spaces are insulated by this point, that rules may still challenge these rights. One cannot presume to enjoy Cannabis in a rental property where smoking is not allowed. We recommend getting a vape pen or opting for alternative means of consumption to avoid any discord with your landlord or body corporate. 

The third example clarifies that the inside of a motor vehicle is indeed a private space. This is a fantastic win for us all! No officer may search our vehicles for Cannabis, but there is a qualification that Paul-Michael highlights. We can carry the Plant in our vehicles, but NOT consume it while the vehicle is moving or on the road. 

The fourth point insulates those obtaining “small quantities” from a “traditional, cultural, or religious healer” for private use. Now, this one requires a little bit more scrutiny. Since there is no quantifiable definition provided for “small quantities”, there is still some notable risk for those who have a traditional, cultural, or religious relationship with the Plant. However, this point also does offer recognition of the various communities and individuals that share in Cannabis outside of a purely responsible adult use context. This illustrates that wider consideration is being given to the persecution suffered by these groups, demonstrating that evidence-based approaches are filtering into how Cannabis Policy is crafted. 

The use of the word “healer” does not seem to cover leaders in traditional, cultural, and religious settings. In a little side Rant, Myrtle calls out those lacking integrity to continue claiming they are traditional healers purely for the sake of keeping their Section 21 rackets going. We are as against this as we are against the abuse of traditional healers, and false claims to being the same, to further narratives that only lend to profits for some!

The final point in this paragraph underlines that “more than one person may have ownership to personal and private cannabis”. Paul-Michael reflects on the age-old legal co-ownership of anything, likening shared Cannabis ownership to how several people may share rental for a space they live in. Indeed, we like to share what we grow with those we co-habit with. 

CONCLUSION

Best practice needs to underlie how we conduct ourselves as Cannabis Users. This extends to individuals, business, places of religious, cultural, and traditional spaces, as well as the various branches of the law. 

Things are changing folks, and we are ready for this new chapter. 

Print the directive out, commit it to heart, and know that it offers the much needed clarity lacking for so long. 

Our thanks to the National Commissioner of the South African Police Service SF Masemola for issuing the Directive. We also appreciate Brigadier NF van Graan for listening to our inputs at the Cannabis Phakisa Action Lab. 

Light one up for Jules!

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About the Author: Leela Baer

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