South Africa is often described as one of the African countries that decriminalised cannabis, but that description becomes less straightforward the closer one looks at what followed the Constitutional Court’s 2018 judgment.
In Minister of Justice v Prince, the Court held that criminalising an adult’s private use or possession of cannabis for personal consumption, and private cultivation for that purpose, was an unjustifiable infringement of a person’s constitutional right to privacy. Crucially, the Court did not legalise commercial dealing and did not create an unrestricted right to possess any quantity, but it drew an important line between private and commercialised conduct.
Eight years later, South Africa is still trying to decide exactly where that line should be drawn.
The Cannabis for Private Purposes Act 7 of 2024 was signed into law in May 2024; its purpose was to entrench the 2018 decision in law and paving the way or further regulation of the plant by removing cannabis from the Drugs and Drug Trafficking Act. As of September 2026, this Act has not yet commenced. The Government’s own legislation portal still records its commencement as “to be proclaimed”.
Draft regulations published in February proposed a maximum of 750 grams for possession and transportation for private purposes, and five cannabis plants for private cultivation. Those limits remain as proposals, requiring parliamentary approval before taking effect.
Punitive thresholds remain in place
While this progress is commendable, it does not do away with cannabis possessing penalties for those above threshold quantities. Once the Act is brought into operation, possession, transportation or cultivation of plants above the prescribed maximum can each attract a fine, imprisonment for up to five years, or both.
That creates an uncomfortable scenario for South Africa, a country that has spent the past eight years describing its cannabis journey as one of decriminalisation, when it has failed to truly implement a non-criminal approach to cannabis. An adult could still be criminalised for carrying cannabis, or for cultivating more plants than expected.
Initially, the 2018 Prince judgement outlined that the quantity that an adult possesses or cultivates should be a factor in determining whether possession was genuinely personal or for sale. The State still bore the burden of proving beyond reasonable doubt that possession of any quantity was for another purpose. This gave consumers some level of protection as the Court specifically warned against criminalisation where the circumstances made that difficult to establish.
Under the 2024 Act, the statutory model changes the role of quantity: once the prescribed limits are in force, exceeding the maximum amount permitted for private possession or the maximum number of plants permitted for private cultivation becomes an offence in itself. The Act separately creates fine-only offences for public use and for certain use or smoking in private places.
This difference deserves more attention than it has received.
If 750 grams becomes the final possession limit, what changes when someone possesses 751 grams? What harm comes from growing an extra plant that would justify imprisonment for up to five years? The Government must justify through hard evidence on why keeping such harsh punishments would prevent harm or benefit the public.
The thorny issue: how to get cannabis
Administrative simplicity is not the same thing as proportionality.
The deeper difficulty is that South Africa has become increasingly precise about the quantity of cannabis an adult may eventually possess while remaining far less clear about where that adult may lawfully obtain it.
The Justice Department itself acknowledged in February that the Cannabis for Private Purposes Act does not deal with commercial cultivation, cannabis purchasing, or recognise traditional growers. Those matters fall outside both the 2018 judgement and the 2024 Act.
South Africa therefore finds itself in an unusual position. An adult can be constitutionally protected for private possession and cultivation, but how or where they get it from remains unclear. There is still no general lawful adult-use commercial market from which that person can simply purchase regulated cannabis. The 2024 Act creates no cannabis-club licence or specific exemption; Haze Club rejected the particular paid grow-club model before the Western Cape High Court.
Further problems for patients
For medical cannabis patients, the division is even more pronounced because those products sit within a separate medicines’ framework. A patient who needs a product with known strength, dosage and quality is not in the same position as someone cultivating privately for personal use. A cannabis plant grown in a garden does not become a standardised medicine merely because the person growing it intends to use it for medical purposes.
Private cultivation may provide access to cannabis, but it does not automatically provide the consistency, formulation or clinical oversight associated with a regulated medicine. A patient cannot grow a prescription. South Africa therefore recognises cultivation as part of private use while leaving patients who require standardised products dependent on a far narrower regulated pathway.
The result is a fragmented legal landscape in which privacy, medicine, policing, commercialisation and traditional cultivation are all treated separately, even though the people affected by those rules experience them as one problem.
This fragmentation needs urgent clarification in any context, but especially in South Africa, due to its history of cannabis colonial control and policing.
The Prince judgment in 2018 was a significant move away from criminalisation, with a judgment grounded in the fact that South Africa’s criminal law had intruded too far into the private lives of adults. The remaining question is whether the 2024 Act absorbed and built upon that lesson.
Drawing a numerical threshold boundary may make cannabis policing simpler. Yet this approach is replicating the harms of cannabis prohibition – something that decriminalisation was supposed to address.
If this threshold remains in place with a criminal punishment attached to it (rather than no threshold or an administrative sanction), it is the state’s responsibility to explain why this penalty would reduce societal harm. The seriousness of the penalty matters because decriminalisation should be measured not only by what conduct has been removed from the criminal law, but by how easily people can still be pulled back into it.
What’s the purpose of reform?
In South Africa, as in many other places worldwide, drug policy reform often occurs incrementally. Governments remove one offence for a substance, create an exception, introduce a threshold or shift responsibility between departments, while the underlying machinery of criminalisation remains available at the edges. While punishment may be reduced, people are still vulnerable to arrest and prosecution if they act outside of its limits.
Eight years after Prince, the central question is no longer whether private adult cannabis use should be criminalised; the Constitutional Court answered that.
The harder question that Cannabis for Private Purposes Act must answer is how far the state may rebuild criminal liability around the edges of that protected conduct, and what evidence should be required before a person moves from exercising a constitutional right to facing a prison sentence.
South Africa may yet produce a coherent answer, but the measure of successful decriminalisation should not simply be how much cannabis the law allows someone to possess. It should include how rarely people who use cannabis are drawn unnecessarily back into the criminal justice system.
