IN CONVERSATION WITH MAKUBELA MOKULUBETE, Senior State Law Advisor.
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The Ministry of Justice and Constitutional Development has published draft
regulations in terms of the Cannabis for Private Purposes Act, 2024 (Act No. 7
of 2024), for public comment. The draft regulations propose upper limits for
the possession and cultivation of cannabis for private use and form part of the
ongoing process to implement the Act.
In 2018, the Constitutional Court delivered an unanimous judgement in the
matter of Minister of Justice and Constitutional Development and Others v
Prince and Others (CCT 108/17), in which it found that the criminalisation of
the use or possession of cannabis by an adult for private purposes was not
reasonable and justifiable in an open and democratic society founded on
human dignity, equality, and freedom.
The Court accordingly declared the relevant legislative provisions
constitutionally invalid and directed Parliament to effect the necessary
amendments.
Parliament subsequently enacted the Cannabis for Private Purposes Act, 2024,
to give effect to the Constitutional Court judgement.
The Act provides a regulatory framework for the use, possession, cultivation,
and transportation of cannabis for private purposes and makes provision for
the expungement of criminal records for persons previously convicted of
certain cannabis-related offences.
While the Constitutional Court did not prescribe specific limits on the quantity
of cannabis that may be possessed or cultivated for private use, it left this
determination to Parliament.
The Act accordingly empowers the Minister of Justice and Constitutional
Development to determine such limits through regulations.
In developing the draft regulations, the Minister considered a range of factors,
including what may reasonably constitute private use, the number of cannabis
plants required to support such use, and relevant international benchmarks.
The draft regulations also set out administrative and technical processes
09:35
relating to the expungement of qualifying criminal records.
Copies of the draft regulations are available on the Department of Justice and
Constitutional Development website and in the Government Gazette -
https://www.justice.gov.za/legislation/notices/2026/20260202-
gg54061rg7067-Draft%20Cannabis%20Regulations.pdf .
Members of the public and interested stakeholders are invited to submit
written comments to the Department by 5 March 2026. All submissions
received will be carefully considered before the regulations are finalised. Once
finalised, the proposed limits will be submitted to Parliament for approval
prior to coming into effect.
The Constitutional Court judgement aligned South Africa with a growing
number of jurisdictions that permit the private use of cannabis by adults. Since
the judgement, the use or possession of cannabis by an adult for private
purposes has not constituted a criminal offence.
The Court, however, did not extend this to the buying and selling of cannabis.
It is important to emphasise that both the Constitutional Court judgement and
the Act permit the use of cannabis only by adults, defined as persons who are
18 years of age or older. The use of cannabis by children remains prohibited,
primarily due to medical concerns regarding its impact on the developing
brain.
While the Constitutional Court found in Centre for Child Law v Director of
Public Prosecutions, Johannesburg (CCT 210/21) that criminalising a child for
the use or possession of cannabis was not in the child’s best interests, the Act
places clear responsibility on adults and criminalises conduct where an adult
permits a child to use or possess cannabis or supplies cannabis to a child.
The draft regulations and the Cannabis for Private Purposes Act are confined
to implementing the Constitutional Court decision on the private use of
cannabis.
Matters relating to the commercial cultivation, buying or selling of cannabis
or cannabis products, as well as the recognition of traditional growers, fall
outside the scope of the Act and are being add
regulations in terms of the Cannabis for Private Purposes Act, 2024 (Act No. 7
of 2024), for public comment. The draft regulations propose upper limits for
the possession and cultivation of cannabis for private use and form part of the
ongoing process to implement the Act.
In 2018, the Constitutional Court delivered an unanimous judgement in the
matter of Minister of Justice and Constitutional Development and Others v
Prince and Others (CCT 108/17), in which it found that the criminalisation of
the use or possession of cannabis by an adult for private purposes was not
reasonable and justifiable in an open and democratic society founded on
human dignity, equality, and freedom.
The Court accordingly declared the relevant legislative provisions
constitutionally invalid and directed Parliament to effect the necessary
amendments.
Parliament subsequently enacted the Cannabis for Private Purposes Act, 2024,
to give effect to the Constitutional Court judgement.
The Act provides a regulatory framework for the use, possession, cultivation,
and transportation of cannabis for private purposes and makes provision for
the expungement of criminal records for persons previously convicted of
certain cannabis-related offences.
While the Constitutional Court did not prescribe specific limits on the quantity
of cannabis that may be possessed or cultivated for private use, it left this
determination to Parliament.
The Act accordingly empowers the Minister of Justice and Constitutional
Development to determine such limits through regulations.
In developing the draft regulations, the Minister considered a range of factors,
including what may reasonably constitute private use, the number of cannabis
plants required to support such use, and relevant international benchmarks.
The draft regulations also set out administrative and technical processes
09:35
relating to the expungement of qualifying criminal records.
Copies of the draft regulations are available on the Department of Justice and
Constitutional Development website and in the Government Gazette -
https://www.justice.gov.za/legislation/notices/2026/20260202-
gg54061rg7067-Draft%20Cannabis%20Regulations.pdf .
Members of the public and interested stakeholders are invited to submit
written comments to the Department by 5 March 2026. All submissions
received will be carefully considered before the regulations are finalised. Once
finalised, the proposed limits will be submitted to Parliament for approval
prior to coming into effect.
The Constitutional Court judgement aligned South Africa with a growing
number of jurisdictions that permit the private use of cannabis by adults. Since
the judgement, the use or possession of cannabis by an adult for private
purposes has not constituted a criminal offence.
The Court, however, did not extend this to the buying and selling of cannabis.
It is important to emphasise that both the Constitutional Court judgement and
the Act permit the use of cannabis only by adults, defined as persons who are
18 years of age or older. The use of cannabis by children remains prohibited,
primarily due to medical concerns regarding its impact on the developing
brain.
While the Constitutional Court found in Centre for Child Law v Director of
Public Prosecutions, Johannesburg (CCT 210/21) that criminalising a child for
the use or possession of cannabis was not in the child’s best interests, the Act
places clear responsibility on adults and criminalises conduct where an adult
permits a child to use or possess cannabis or supplies cannabis to a child.
The draft regulations and the Cannabis for Private Purposes Act are confined
to implementing the Constitutional Court decision on the private use of
cannabis.
Matters relating to the commercial cultivation, buying or selling of cannabis
or cannabis products, as well as the recognition of traditional growers, fall
outside the scope of the Act and are being add
