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DUI? ‘Tis the season for roadblocks

DUI? A police officer waits on his motorcycle during a roadblock

The holiday season is almost upon us, bringing with it quality time with family and friends, good food, parties and, of course, the inevitable roadblocks. While these are mostly an inconvenience, they do conjure up fear and anxiety, especially if we’ve contravened the rules – like DUI, driving under the influence of alcohol.
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Roadblocks? Don’t panic!

Roadblocks Cape Town - DUI
Roadblocks may be set up for a variety of reasons, and many daytime roadblocks are designed to check drivers’ licences, examine the roadworthiness of vehicles, and chase up unpaid fines for motoring offences. But it’s the ones at night that set our hearts racing when we see the blue lights up ahead. Continue reading

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Medical marijuana South Africa – a licensed affair

Medical Marijuana South Africa

Medical Marijuana

As we covered previously, on 31 March the Western Cape High Court ruled that marijuana (dagga or cannabis) can be used by adults in the privacy of their own homes, and may be cultivated for private use. Even before that groundbreaking verdict, South Africans were using marijuana privately for medicinal use, and were doing so legally. So has anything changed as a result of the High Court decision?

 

Medical uses of cannabinoids

It has been known for some years that cannabinoids can provide relief for sufferers of a number of conditions. The evidence base is stronger for some therapeutic applications than for others, but that does not mean a lack of efficacy, merely a lack of formal evidence. Research has demonstrated medical benefits for nausea and vomiting associated with cancer chemotherapy, anorexia and cachexia (weight loss) in HIV/AIDS, chronic pain, spasticity in multiple sclerosis and spinal cord injury. Other indications, such as epilepsy, pruritus and depression, are less researched but anecdotal evidence suggests some therapeutic benefits.

 

Cannabinoids vs. cannabis

At this point you may be a bit confused by the terminology, and it is worth taking a look at what is meant by ‘cannabinoids’ and what the implications are for their legal use. Cannabinoids are the chemical compounds secreted by cannabis flowers that provide relief to symptoms such as pain, nausea, anxiety and inflammation. They do this by activating specific receptors in the body to produce pharmacologic effects, particularly in the central nervous system and the immune system (source).

The most common cannabinoids are tetrahydrocannabinol (THC) and cannabidiol (CBD). THC is psychotropic and provides the ‘high’ when cannabis is smoked. It is used in a therapeutic context for its analgesic properties. CBD is non-psychoactive and, in addition to its analgesic qualities, has been shown to be anti-spasmodic and a muscle relaxant.

Cannabinoids can be administered through the conventional method of smoking cannabis, but this is not necessary and many medical indications for cannabinoids specifically do not use ‘whole plant’ preparations, partly because it is impossible to accurately measure dosage. Cannabinoids can be extracted and prepared in tablet form where the dose can be calculated, and they can also be synthetically produced. In the USA, commercially available cannabinoids, such as dronabinol and nabilone, are approved drugs for the treatment of cancer-related side effects.

While the legal position regarding the use of cannabis and cannabinoids for medical use varies from jurisdiction to jurisdiction, making it impossible to generalise, it is not uncommon for the use of specific cannabinoids in a pharmacological preparation to be legally approved for therapeutic purposes while use of the whole plant (e.g. smoking cannabis in a joint or pipe) is still prohibited.

Therefore it is important to fully understand the law and not assume that ‘medicinal use’ is a legitimate defence if caught possessing or distributing marijuana.

 

The medical marijuana situation in South Africa

We covered this briefly in the article entitled, A Joint Account – Just How Legal Is Marijuana Following The High Court Ruling?, but let us look at the circumstances surrounding use and supply of medical marijuana in more detail. Cannabis for medically approved therapeutic reasons is permitted within the provisions of the Medicines and Related Substances Act, 1965. Under the Act, “…medical practitioners can apply to the Council for permission to access and prescribe unregistered medicines – including cannabis – for their patients in certain exceptional circumstances. Medicinal cannabis products may thus be made available to specific patients under medical supervision. Only registered medical practitioners may apply for authorisation to prescribe a controlled medicine for a specific patient. Authorisation from Council is dependent on the submission of an appropriate dosage regimen and acceptable justification for the proposed use, and regular reporting to the MCC.” (Source)

In layperson’s terms, only a qualified medical practitioner (usually a doctor and a few other permitted healthcare professionals) can prescribe cannabis and the treatment must be justifiable and justified by a legitimate complaint and backed up with instructions for use.

Furthermore, the regulations specifically govern medicines containing cannabis, cannabis extracts, and cannabis-derived substances such as cannabinoids, which have been registered with the MCC, hence our explanation of the distinction between cannabis and cannabinoids. These substances are rescheduled and listed in Schedule 6 to bring them into line with the scheduling status of other restricted medicines, thus allowing patients to access medicinal cannabis products by prescription at a pharmacy. Any cannabis products not registered by the MCC remain in Schedule 7 and technically still illegal, though of course the recent High Court ruling has provided the defence of the right to privacy if one is caught cultivating or using cannabis for one’s own enjoyment.

 

Sale and distribution of medical marijuana

It is still against the law to cultivate marijuana for distribution or to distribute it, regardless of its intended use. However, the Medicines Act allows the MCC to issue a licence to manufacture either a medicine or a Scheduled substance (Active Pharmaceutical Ingredient/API), on condition of MCC oversight. Therefore cannabis growers can be licensed if they can prove that cultivation is for medicinal use.

So, if you succeed in securing a licence to cultivate marijuana from the MCC, don’t hope you can supply the neighbourhood with dagga and get away with it. You will be monitored very closely! According to the regulations: “Cannabis is a prohibited narcotic substance in South Africa, and cultivation for any purpose other than that explicitly allowed for through the licence and permit system under the Medicines Act, is a criminal offence. Likewise, cultivation by non-licensees remains a criminal offense under this legislation.” If you are a legitimate grower of medical marijuana, make sure your licence is valid.

 

Are you affected by this legislation?

If you have any questions about the recent High Court ruling or the distribution of medical marijuana, or if you have been charged with an offence concerning cannabis, contact us. Call us now on 087 550 2740 or contact us if you have any questions regarding possession or use of cannabis.

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A joint account – just how legal is marijuana following the High Court ruling?

Marijuana Legal in South African High Court Ruling

On 31 March the Western Cape High Court ruled that marijuana (dagga or cannabis) can be used by adults in the privacy of their own homes, and may be cultivated for private use. The decision was based on the view that banning use of marijuana is an infringement of the right to privacy. Undoubtedly this was cause for celebration for many people in South Africa. But some of the jubilation may have been premature. This ruling does not mean that marijuana use has been decriminalised. Let’s look at exactly what is and is not allowed as a result of the judgement.

 

Marijuana in private, at home

Friday’s ruling only allows for the possession, cultivation and use of cannabis at home, for private use. The judgement also obliges Parliament to change certain sections of the Drug Trafficking Act and the Medicines Control Act. Parliament has two years to effect the changes to statute, and until then, police can still arrest you in your home for possession of cannabis, but the ruling means you can use the right to privacy as a defence if you are charged. It also means there is much less likelihood of police using their resources to pursue small-time cannabis users at home.

 

How it works technically

In his decision, Justice Dennis Davis ruled that the sections of the Drugs Act and the Medicines and Related Substances Act, 1965 prohibiting personal use of cannabis are invalid. He suspended the invalidity for 24 months to give Parliament time to amend the Acts and ensure they are Constitutional. It is important to note that, before Parliament can do this, the ‘order of invalidity’ must be confirmed by the Constitutional Court. For now though, any pending prosecutions under the sections of the Acts subject to the order of invalidity will by ‘stayed’ – put on hold – until the matter is resolved.

 

Medicinal use of marijuana in South Africa

This ruling does not cover the prescribing of cannabis for medicinal purposes, which was already mandated by the Medicines Control Council. Medical application of cannabis is permitted within the provisions of the Medicines and Related Substances Act, 1965, and the MCC published guidelines clarifying the position in November last year. Under the Act, “…medical practitioners can apply to the Council for permission to access and prescribe unregistered medicines – includingg cannabis – for their patients in certain exceptional circumstances. Medicinal cannabis products may thus be made available to specific patients under medical supervision. Only registered medical practitioners may apply for authorisation to prescribe a controlled medicine for a specific patient. Authorisation from Council is dependent on the submission of an appropriate dosage regimen and acceptable justification for the proposed and intended use.” (Source)

 

What you can’t do

Last week’s ruling does not equate to full decriminalisation of marijuana. It merely allows the defence of the right to privacy for anyone caught using cannabis in their own home, and places obligations on Parliament to amend the laws within 24 months. Consumption of the substance in public is still an offence, so if you light up in a public place, such as a music festival, you cannot claim you are exercising your right to privacy, even if you are enjoying your smoke by yourself. You also may not sell or distribute the drug, or cultivate it for distribution.

 

The future?

Many observers feel that the Western Cape High Court ruling is the first step towards a more liberal legislative framework for cannabis, which could ultimately result in full decriminalisation. Parliament has a two-year deadline for legalising personal use of the substance, and it may use that window to consider the implications of a broader decriminalisation agenda.

 

Do you have a pending prosecution?

If you want to know how you are affected by this ruling, or if you have been charged with an offence concerning cannabis, contact us. Call us now on 087 550 2740 or email sdippenaar@sdlaw.co.za if you have any questions regarding possession or use of cannabis.

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To legalise marijuana, or not to legalise? That is the question.

In the last article, we looked at the background to marijuana use and discussed recent developments in South Africa and other – mostly developed – countries.

There is no ‘one size fits all’ approach to dealing with the drug. Information about the advantages and disadvantages of drug use is widely available but everyone interprets that information differently to arrive at their own conclusions, often widely divergent.

Legalise Marijuana in South Africa

This article will address the pros and the cons of legalisation.

 

Legalise Marijuana

 

Cons

Arguments against legalising marijuana include:

  • The harmful effects of heavy cannabis use include psychosis in healthy people – further research is needed to understand just how serious this problem might be. Other health dangers include the effects on short-term memory, reaction time, and the heart and lungs. Marijuana’s mood-altering qualities can carry risk: heavy users may feel calm in situations where they need to be alert; and at the upper end of the scale there is the possibility of anxiety and paranoia
  • In a country where HIV is a major concern, use of dagga can suppress the immune system
  • Cannabis is quoted as a ‘gateway’ drug, leading to experimentation with hard drugs

(heroin, cocaine and methamphetamines) (though there is little in the way of hard evidence to support this)

  • Use of marijuana has been linked to testicular cancer
  • Use by pregnant women can lead to poor development of the foetus
  • Decriminalising the use of marijuana will free up the legal system and reduce the massive cost of policing drug use but it could also encourage an upsurge in drug use with far-reaching consequences. (What might work in the United States or Europe might not work in South Africa)
  • It will be difficult for police to assess whether a driver is under the influence of the drug rather than alcohol
  • Smoking a ‘joint’ deposits three to five times more tar into the lungs than one normal cigarette. Smoking three to four joints per day causes as much harm to the lungs as a full pack of cigarettes a day and marijuana smoke is more dangerous than tobacco smoke
  • If cannabis is easily available, this might create new users, exposing additional people to the risks described
  • Legalising marijuana may send a message to children that drug use is acceptable – including hard drugs
  • Marijuana use is associated with conditions like memory loss, cancer, immune system deficiencies, heart disease, and birth defects. Even where it has been decriminalised, marijuana trafficking remains a source of violence, crime, and social disintegration

 

Pros

Arguments in favour of legalisation include:

  • Penalties for smoking cannabis far outweigh the crime, according to human rights activists. Human rights (dignity, freedom, security of person, privacy and freedom of speech) are violated by excessive punishment
  • Legal sales of marijuana would introduce a new player into the economy and open up opportunities for small businesses, particularly the hemp industry and manufacture of medicinal products
  • Resources currently occupied in catching and prosecuting drug dealers and users would be released to deal with more serious offences. The money saved could be channelled into education about the effects of using dagga and other drugs, thus reducing the potential harm they cause
  • Legal trade in cannabis would reduce the prevalence of drug dealers and their networks; the legal system has failed to do this and there are no signs that it will succeed
  • Marijuana use eases the pain and discomfort for many people affected by illnesses such as multiple sclerosis, cancer and HIV/AIDS. There is reason to believe that less invasive cancers might be eased with the use of medical marijuana and its use is alleged to be safer than certain prescribed medicines
  • Use of the drug for religious reasons (e.g. spiritual use, Rastafarians) would be destigmatised
  • Legalisation allows greater regulation. Cigarettes come with warnings and alcoholic beverages are clearly marked with the alcohol content. Legal drugs at present list all active and inactive ingredients. Marijuana sold legally could have ingredient lists, warnings and purity levels indicated. There would be less risk of ‘impure’ products or drugs cut with potentially harmful substances
  • Taking marijuana out of the hard drugs market and placing it in the same category as alcohol and tobacco takes away the ‘glamour’ and makes it potentially less appealing to young people in a high-risk category
  • The national purse (and potentially essential services such as health and education) would benefit from the tax raised, if the drug were taxed similarly to alcohol and cigarettes
  • Legalisation of marijuana would lead to greater control over the sale of the drug. Illicit drug dealers will sell to anyone, including children, whereas merchants who legally sell alcohol and tobacco must observe legislated age minimums. Many high school students report that it is easier to obtain illegal drugs than alcohol and tobacco

 

You decide…

There is a wealth of information online where the debate centres on the positive and negative effects of cannabis use. The possible benefits of medicinal marijuana, so important to carers and sufferers in easing pain and suffering, continue to attract attention; and a more relaxed legal approach to medical marijuana is being adopted in many parts of the world.

And the recreational use of cannabis? The road ahead is not so clearly marked and more research needs to be done. Arguably, more education among the general population is required to facilitate an informed debate before legislators will consider a major change to our laws that the legalisation of marijuana would signify.

 

More Information

We hope we’ve given you something to think about. If you’d like more information or if you think you might be on the wrong side of the law, contact Simon today on 087 550 2740 or email sdippenaar@sdlaw.co.zafor expert advice on your rights and responsibilities.

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