There is a particular kind of silence that follows a victory, and we have been living inside it since September 2018. That silence is deafening. The Constitutional Court said what it said, the country understood it perfectly well, and then the machinery of the State went quiet in the way a man goes quiet when he has been told something he does not like, does not agree with, and intends to think about for a very long time. Eight years is a long time to think. It is long enough for a child born the week of that judgment to be reading, long enough for two national elections, long enough for the men who argued the case to grow grey at the temples. And at the end of those eight years the statute that was supposed to give effect to the judgment sits signed, printed, gazetted and inert, waiting on a signature that has not come, while the police still take plants out of people’s yards and the farmers who kept this crop alive through every year it was a crime are still outside every room where the future is being decided. Absolute cluster f*&k!

That is the position. What follows is how we got here, what is happening in a Cape Town courtroom right now, and what this desk says should happen instead. The last of those three is an argument and it is marked as one, because the difference between what the law is and what the law ought to be is the only line in this piece that matters more than the prose.

The judgment, and what it actually said

Start with what was won, because it is routinely overstated and routinely undersold in the same conversation. In September 2018 the Constitutional Court held that the criminalisation of the use, possession and cultivation of cannabis by an adult, in private, for personal consumption, was an unjustifiable invasion of the right to privacy. The Court did not legalise a trade. It did not open a shop. It struck down an intrusion. And it gave Parliament twenty four months to cure the defect, which is the ordinary courtesy the Court extends to the legislature when it would rather not leave a hole in the statute book.

Ten judges sat and not one of them wrote separately. There is no dissent in that judgment, no concurrence, no second voice, which is worth sitting with for a moment, because sixteen years earlier the same court had refused the same man by five votes to four. What changed between those two judgments was not the plant and it was not the science. It was the question. In 2002 the case was about whether a religious exemption could be carved out of a prohibition that everybody in the room accepted, and the majority recorded in terms that the State had not been called upon to justify its method at all. In 2018 the prohibition itself was in the dock, on privacy, and for the first time in this country’s history the State had to stand up and explain why it should be allowed to send a man to prison for what he does alone in his own yard. It could not.

That is the part of the judgment nobody quotes and it is the part that matters most. The State’s case rested on the affidavit of a pharmacist with a doctorate in pharmacology, who deposed that although tobacco, alcohol and prescription drugs also have harmful effects, research had shown beyond reasonable doubt that their effects are far less than those of cannabis. The Court put that claim next to the World Health Organisation’s own report, which says the consequences reported by cannabis users seeking treatment appear less severe than those reported by people dependent on alcohol or opioids, and observed drily that the WHO contradicted the State’s expert. Then it put it next to a position statement published by this country’s own Central Drug Authority in the South African Medical Journal, which had said that alcohol is the substance causing the most individual and societal harm and that the immediate focus should be decriminalisation rather than legalisation. The High Court below had already called the State’s evidence singularly unimpressive, and had noted that the central expert report in the case was one the court itself had gone out and commissioned, because neither party produced anything adequate. When the State asked the Constitutional Court to hold the whole matter over so that it could lead better evidence in a criminal trial in Pretoria, the Acting Chief Justice refused, and said that the State had been given more than enough time and had failed. On the proposition that cannabis makes people violent, the judgment records that there was no cogent evidence for it. On the treaty obligations the State invoked, it held that South Africa’s international obligations are subject to South Africa’s constitutional obligations, and that no agreement can stop the Court declaring a statute unconstitutional.

So this was not a court being liberal. It was a court being shown nothing.

The Court then went further than it had been asked to. The High Court had confined its order to a private dwelling, and the Constitutional Court pointed out the absurdity: on that order a man commits no offence with cannabis in his pocket inside his house and commits one the moment he steps over his own threshold with the same cannabis in the same pocket. So it replaced the dwelling with the words in private, and for growing, a private place, and gave the garden of one’s residence as its example while making clear the category was wider than that. It refused to fix a quantity, saying it would leave the amount to Parliament, and it explained why it preferred a standard to a number: the whole point of speaking about personal consumption is that you then do not have to specify how much a person may have. The Judge said in terms that reading a quantity into the Act would have been inappropriate. On what a policeman is supposed to do, the judgment spends fifteen paragraphs, compares the exercise to deciding whether a man was driving negligently, notes that our liquor law already asks whether somebody has more liquor than is reasonably required for personal use, and lands on two sentences that every adult in this country should have framed on a wall. The State bears the onus of proving beyond a reasonable doubt that the possession was not for personal consumption. And where it is difficult to tell, the officer should not arrest.

Hold that against the eight thousand shops and the arrests that carried on anyway.

Twenty four months. Count them from September 2018 and you land in September 2020. We are now sixty months past that deadline, which is to say the period of grace has been exceeded by a factor of three, and the thing the grace was granted for is still not done.

And there is one more thing in that judgment, sitting in plain sight, that nobody on the bench remarked on. The Court refused to strike down the prohibition on buying cannabis, and its reason was that a purchaser buys from a dealer, so striking it down would sanction dealing, which the Court said it had no intention of doing. Elsewhere in the same judgment it observes that there can be no purchase without a sale. Put those together and you have the hole this country has been standing in ever since. You may possess it. You may grow it. You may use it. You may not buy it from anybody, and nobody may sell it to you, so the only lawful ways to come by the thing you are lawfully entitled to have are to grow it yourself or to be given it. The prohibition on dealing was upheld in a single sentence, on no evidence at all, by a court that had just refused the State a postponement on the ground that its evidence was inadequate. That is not a criticism anybody made at the time and it is not a criticism the judgment answers, because there was no second judgment to make it.

The case is known by the name of the man who brought it, and the man is worth holding onto, because he comes back at the end of this piece. He first went to court in 1998, and not over a bag of dagga: he had passed his law exams and the Cape Law Society would not register his articles, because he had two convictions for possession and had said plainly that he intended to go on using cannabis as his faith required. A man was told he could not be an attorney because he would not stop being a Rastafari. He lost in the High Court, lost in the Supreme Court of Appeal, and in 2002 lost in the Constitutional Court by one vote. Sixteen years later he came back and won, unanimously, in a case that had stopped being about religion and had become about every adult in the country. There are not many people in this country who have spent that much of one life on a single point of law, and almost nobody who has spent it on this one. He is a national treasure, and should be held up as one.

The Act that was written, and then not switched on

Parliament eventually produced the Cannabis for Private Purposes Act 7 of 2024. It was assented to on 28 May 2024 and published in June 2024. And there it stopped, because the Act contains a provision saying it comes into operation on a date fixed by the President by proclamation in the Gazette, and no such proclamation has issued. As at the day this piece was written the Act is law in the sense that it exists and is not law in the sense that anything in it applies to anybody. It is a statute in a coma. A non-starter. Failure to launch. Good, because it is kak.

What was supposed to breathe life into it was a set of regulations, and those exist too, in draft. They were published for public comment in February 2026, they proposed an upper limit (here we go) on how much cannabis a private adult may possess (why?) and how many (a measurement again) plants a private adult may grow (why?), and the comment window closed at noon on a Thursday in early March 2026. The responsible Minister had told Parliament, in an answer to a written question the previous July, that the regulations would be finalised by March 2026. March 2026 came and went. So did April, when a commercialisation policy was due to reach Cabinet and did not. It is now September.

In the meantime a national business title ran a headline last weekend telling South Africans they are allowed to hold up to 1 500 joints. The body of that article was more careful than its headline and quoted a lawyer saying the framework is not yet fully in effect, but the headline is what travels, and the headline described a proposed limit, a number that appears in no law presently in force, in a draft regulation under an uncommenced Act, as though it were the law of the land. What actually operates in the meantime is not a number at all. It is a purpose test. It protects an adult who uses or possesses cannabis in private for personal consumption in private, and it asks what the cannabis is for rather than what it weighs, or how many plants you have. This is the actual harm of an eight year silence. Into a vacuum, anything will pour.

The clearest statement of the position came, remarkably, from the man the State itself put in charge of sorting it out. The project manager of the government’s Hemp and Cannabis Master Plan, a former Deputy Minister of Justice who helped steer this very Act through Parliament, told a business paper in March 2026: “The legal situation is not desirable. It’s quite confusing.” When the man running the plan says the situation is confusing, the citizen may be forgiven for having formed the same view somewhat earlier.

What eight years of confusion has cost, in people

Policy debates in this country have a way of floating free of the people they are about, so put some weight in the boat. Get the artisanal farmers into the room please.

The police issued a national instruction in August 2023 about arrests for cannabis related matters, and in December 2024 the South African Human Rights Commission had to publish a statement reminding law enforcement to adhere to the moratorium it created, recording that the arrest or prosecution of adults for the private use, possession or cultivation of cannabis is inconsistent with both the law and national operational directives. Read that sentence twice. A constitutional body found it necessary, six years after the apex court had spoken and a year and a half after the police had instructed their own members, to remind the police of what the law was.

At a symposium held at a Cape Town law faculty in June this year, a panel on policing produced the claim that before the Act up to a thousand arrests a day were the norm. That figure comes from the panel and not from a published study, and this desk has not been able to trace it to a primary source, so treat it as an allegation on the record rather than a proven number. But even discounted heavily it describes a machine that did not stop when the Court told it to. FFS! This is insane!

In the Eastern Cape, the growers who hold the landrace genetics that made this country’s name in cannabis have spent the same eight years watching the industrial version of the plant arrive without them. In February 2025 an association representing growers in the Mpondoland cannabis belt went public with a complaint that hemp seed was being distributed to local farmers without community consultation, and that cross pollination between low resin hemp and their own high resin landraces would degrade a crop their families had held for generations. Their spokesperson’s line was not a policy submission. It was four words: there shall be no hemp in Mpondoland.

And around all of it, the grey economy that the vacuum built. One serious estimate put before the trade this year describes roughly eight thousand unlawful retail outlets and around two thousand private clubs operating nationally, moving more than five hundred tons of flower a year, in shopping centres and on main roads, with comprehensive legislation unlikely before 2028. Those numbers are the author’s and are not traced to a primary study, so they are recorded here as his estimate. What is not in dispute is the shape they describe, which is a country where a court freed the private citizen, the legislature never opened a lawful road, and an entire economy grew up in the ditch beside it. Okes took a risk and some are making serious bank, and others were arrested and told they were looking at the twenty five years the Drugs Act allows for dealing. Narcs still narc-ing. Who is in charge here?

The man who won in 2018 is back in court

Here is the part that almost nobody has written, and it is the reason this piece exists.

The applicant from 2018 is now before the Western Cape High Court, together with a Rastafari body and a group of small scale farmers, asking that court to declare the Cannabis for Private Purposes Act and the hemp regulations constitutionally invalid. The respondents are three national ministers and the police. The application is brought in two parts, the first seeking urgent interim relief including a halt to arrests for private use and an order that plants not be destroyed without judicial oversight, and the second carrying the constitutional attack itself. It was reported in a Cape newspaper in April 2026, when the hearing was postponed because the responsible ministries had not filed answering affidavits, which invites the obvious question about Stalingrad tactics, and a commentator recorded in July that it had been postponed again and reassigned. No judgment has been reported.

Understand what that means, because it is genuinely extraordinary and it deserves to be said plainly rather than dramatised. The State’s answer to the 2018 judgment is being challenged as constitutionally defective by the same person whose case produced the 2018 judgment. His complaint, as reported, is not that the Act goes too far. It is that it does not do what the Court ordered. It is a man returning to court to say that the thing built in his name is not the thing he won.

The matter is live and this desk will not predict its outcome, argue its merits or tell you what a court should do with it. That is not modesty, it is the rule: a live matter is reported and not refereed. What can be said is that a great many people in this industry, this company included, have spent two years planning against a framework that a court has been asked to strike down, and that almost nobody noticed.

Now the argument, and here is the join

Everything above is what the law is and what has happened to it. What follows is what this desk says the law should be, and you are entitled to know exactly where the reporting stops and the advocacy starts. It starts here.

The confusion of the last eight years is not a failure of drafting and it will not be fixed by further, better drafting. It is the predictable result of the State insisting on a role it has no business having. Every difficulty described above flows from one decision, which is that the State chose to regulate what a citizen possesses rather than what a citizen does. Once you accept that premise, you need a number, and once you need a number you need an official to weigh things against it, thresholds, and once you have an official weighing things you have arrests, and appeals, and eight years, and a dealing charge waiting for the man found on the wrong side of a number.

So we do not ask for the Act to be commenced. We do not ask for a friendlier threshold, a cleaner register, a fairer inspector or a commercial licence we might one day qualify for. Every one of those is the same hand on the same shoulder, and a plant that requires a permit is not a free plant, it is a licensed one. A weighted one. A conditional one.

Cannabis is a God given agricultural product and it should be dealt with in law exactly as this country deals with potatoes, maize, figs, olives, honey, pumpkins, konfyt and marmalade. A woman sells fig konfyt at a farm stall on the R62 and nobody inspects or registers the fig tree. A man sells honey off the back of a bakkie at a Saturday market and nobody climbs his fence and counts his hives. Nobody inspects the pumpkin, or sets a trap around the distribution of it. A grower should be free to grow this crop and to trade it on the same footing, with the State’s entire interest in the transaction confined to the tax on what he earns, which is the same interest it takes in the honey.

Quality settles itself where quality always settles itself, which is at the point where the buyer either comes back or does not. He votes with his feet. The grower who cures properly is the grower people return to. The chancer is found out inside a season. Prices find their level, the trade that presently moves in the dark moves into the light, and the money reaches the people who did the work, which in this country means the rural Eastern Cape and not a boardroom in Sandton. That is the whole mechanism. It has run on every other crop for as long as there have been crops, and it does not require an official. As they say, noses know.

And where the State does insist on a licence, look at how it behaves with liquor, because the comparison is instructive rather than embarrassing, and because the Constitutional Court got there first. When it had to explain how a policeman could possibly tell personal use from dealing, one of the examples it reached for was our own liquor law, which asks whether a person has more liquor than is reasonably required for personal use. The Court used it to show that the test it was creating was nothing unusual. We use it to make the point the Court did not have to reach. Liquor law licences the sale. It does not count the vines in a private garden, it does not audit the extensive international collection in the cellar, it does not weigh the grapes in a private bucket, and it does not send an officer to establish how much wine a man took along to a family gathering for his wife. Nobody has ever been arrested at a braai for exceeding a threshold of wine. The error in cannabis law is not merely that the regulation is badly drawn. The error is that it reaches into the yard at all, and that it is there at all. It is wholly unnecessary.

This desk has made this argument before and will keep making it, and readers who want it at length will find it in our pieces on treating cannabis as an ordinary commercial crop, on regulating to feed the fiscus at the point of sale rather than by possession quantity, and on building the local value chains that would follow.

The honest bottom line, which is also the warning

None of the above is advice to act as though the argument had already won. It has not. Dealing in cannabis remains a criminal offence in this country today, the private use exemption from 2018 does not extend to sale or supply, and a reader who treats an opinion column as a licence will discover the difference in a way that no article can soften. If you are going to be dumb, you better be tough. The lawful path today is unchanged and it is narrow: your own plant, your own private space, your own adult self, nobody else’s money in it.

CannaStaySA is an information and advertising directory. We do not sell, supply, broker or facilitate the supply of cannabis, we do not run a club, and we are not your lawyer. What we do is show you where the line actually is, which this month means telling you that the line is being argued about in a Cape Town courtroom by the man who drew it in the first place.

Eight years. Three times the grace the Court allowed. A statute in a coma, a set of regulations that missed their own deadline, a moratorium the police had to be reminded of by a constitutional body, and a growers’ association in the Eastern Cape reduced to saying four words about hemp because nobody would listen to a submission. The State has had its turn and what it produced was silence, and into the silence poured confusion, arrests and eight thousand shops nobody licensed.

Free the plant, and let the farmers farm.

Make it before they take it, Selah.

To see what this failure looks like on the ground, read our case study on the arrest of a Mpondoland farmer outside Bizana over fourteen hundred grams of raw harvest.