In September 2018, a landmark decision by the Constitutional Court in South Africa legalised certain acts in relation to cannabis. In particular, the court ruled that the private cultivation, possession and use of cannabis by an adult for personal use should no longer be a criminal offence. This ruling was in recognition of the constitutional right to privacy. Importantly, any commercial use of cannabis must be of legal cannabis, that being cannabis cultivated under a South African Health Products Regulatory Authority (SAHPRA) cultivation licence.
The Constitutional Court gave the South African parliament two years in which to develop legislation in line with its ruling. Unfortunately, COVID-19 caused substantial delays to legislative developments. So far, we have seen substantial amendments made to the Medicines and Related Substances Control Act 101 of 1965 in May 2020, which alleviated regulation of certain Schedules. However, the Drugs and Drug Trafficking Act 140 of 1992 has yet to be amended to decriminalise private cultivation, possession and use. Furthermore, no developments in intellectual property legislation have been made to date.
Most intellectual property legislation in South Africa prevents the registration of anything which is contrary to law or generally expected to encourage offensive or immoral behaviour. As intellectual property protection is specifically directed to commercial use, the specific position regarding cannabis and private exploitation is currently unknown.
Contact us for more recent updates on cannabis legislation in South Africa.