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Part 2: The Cannabis for Private Purposes Bill - on cultivation, erasing criminal records and protecting children
07 October 2020 | Views: 325
 

In Part 1 of this two-part blog series on the 2020 Cannabis for Private Purposes Bill that has been tabled in parliament and what to expect should it become law, I discussed the amounts of cannabis it provides for adults to have in their possession. I further outlined the penalties for contravening the provisions of the Bill, and how the offences in terms of this Bill, are categorised. If you missed it, just click here.

Here in Part 2 I will provide more details on other pertinent points in the Bill, including the cultivation of cannabis, the Bill's position on cannabis use and cultivation in relation to children, as well as the possibility that any criminal records pertaining to the possession and use of cannabis should be expunged automatically. Yes, you have read correctly.

Cannabis cultivation for personal use

 This Bill makes provision for you to cultivate cannabis for personal use and obviously possess cannabis plants for this purpose too.

The Bill goes into some detail regarding the different stages of the plant’s life cycle which in turn has bearing on the parameters for possession of cannabis plants and how it is regulated.

Firstly, the Bill differentiates between immature cannabis plants (being a non-flowering plant not taller or wider than 15cm) as well as flowering cannabis plants (being a cannabis plant in its reproductive state in which the plant produces the flowering tops that are harvested and dried) while seeds and seedlings are referred to as cannabis plant cultivation material.

As a side note for those who might want to get technical, a plant larger than an immature cannabis plant might still be in a vegetative state and not actually flowering. However, I take it the lawmaker’s intent is to classify such a plant as a flowering cannabis plant for the purpose of cultivation and the subsequent penalties herein.

While you are allowed to possess an unlimited amount of cannabis plant cultivation material, limitations are however applicable for immature and flowering cannabis plants with one flowering cannabis plant being equivalent to two immature cannabis plants.

With that in mind, an adult is allowed to cultivate four flowering cannabis plants or its equivalent in immature plants for personal use, while eight flowering plants are allowed per dwelling that’s occupied by two or more adults.

The table below indicates the penalties pertaining to quantities: 

  Allowed quantity of flowering cannabis plant or its equivalent Trafficable quantity of flowering cannabis plants or its equivalent Commercial quantity of flowering cannabis plant or its equivalent
Per adult  4 6 9
Per dwelling occupied by two or more adults  12 18 
Penalties for contravention  More than this quantity but less than a trafficable quantity:
Class C offence 
Class B offence  Class A offence 

 

Now, we are aware that children are (obviously) not allowed to possess or consume cannabis or cannabis equivalents, but can they grow cannabis?

The Cannabis for Private Purposes Bill’s stance on offences involving a child

In this case, the intention is clearly to provide comprehensive protection when it comes to the possession, consumption, distribution as well as cultivation of cannabis and its relation to children.

For instance, it is a class C offence to smoke cannabis in the immediate presence of a child. Also, failure to store cannabis in a secure space that is inaccessible to a child also constitutes a class C offence, regardless of it being in a public or private space.

Guardians will be held accountable and may be convicted of a class D offence should they permit a child to:

  • Possess or deal in cannabis plants and/or cultivation material;
  • Possess, deal or consume cannabis;
  • Cultivate a cannabis plant.

It is interesting to note, however, that a child is allowed to assist in the cultivation of cannabis under the supervision of a guardian who is lawfully cultivating cannabis for private use, as long as it is done within the confines of the Bill and occurs in a private place.

On a more serious note, provision is made for a number of severe class A offences, specifically pertaining to children, being:

  • Any person who engages a child to deal in cannabis, cannabis plants or cannabis plant cultivation material;
  • Any person who provides a child with cannabis, cannabis plants or cannabis plant cultivation material;
  • Any adult person who engages a child in the cultivation of a cannabis plant;
  • Any person who administers cannabis to a child.

The above points will apply and a person may be found guilty of a class A offence, whether their actions had the purpose of some form of compensation or not.

Expungement of cannabis related convictions

It turns out that this Bill also has some good news in store for those who have criminal records relating to cannabis.

The Bill provides for criminal records pertaining to the possession and use of cannabis to be expunged automatically. Bear in mind that this only applies to convictions for the use and possession of cannabis, but this is good news nonetheless.

As is the case with many new pieces of legislation, should the Bill become law there is always the possibility of your individual records slipping through the cracks. Should this be the case, there are certain steps that you can (and should!) take to ensure that your specific case is dealt with fairly and ensure that your criminal record for the use and possession of cannabis is expunged. The Bill requires that any applicants who meet the relevant requirements and wish for their criminal record(s) to be expunged, may apply to the Director General of Public Prosecutions in writing in the prescribed form and manner for this expungement to take effect. This can be done personally, but it is advisable to obtain the advice and assistance of an attorney to ensure that your matter is handled correctly.

Once a person’s criminal record has been expunged, the Criminal Record Centre of the South African Police Service must issue written confirmation of the successful expungement.

I hope you now have much greater clarity about what the Bill entails.

You’re welcome to get in touch should you have any further questions or concerns regarding this progressive new Bill.