Millions of cannabis convictions could be scrapped

The Cannabis for Private Purposes Bill moved one step closer to being signed into law when Cabinet gave it the green light last week and its next stop now is Parliament.

In the meantime, though, the bill proposes the “automatic” expungement of your criminal record if you have been convicted of using or being in possession of dagga.

You can currently apply to have your record expunged but only if your conviction is more than ten years old. The process is also notoriously difficult to navigate and third-party intermediaries charge a fee for assistance.

Significantly, the Cannabis for Private Purposes Bill proposes that your record “must be expunged automatically” by the police’s Criminal Record Centre. In the event that it were not, however, the bill does provide for a process whereby you could apply to have your record expunged.

The bill comes on the back of the Constitutional Court’s 2018 finding that the Drug Trafficking Act and the Medicine Controls Act were constitutionally invalid insofar as they criminalised the private use of cannabis.

Garreth Prince – the Rastafarian lawyer who took the case to court and the chairperson of the Cannabis Development Council of South Africa – was refused admission as an attorney after a conviction on a possession charge left him with a criminal record.

Steven Thapelo Khunou (left) and Garreth Prince outside the Constitutional Court in Johannesburg after the judgment on the private use of marijuana was handed down, 18 September 2018. Picture: Mokone Mphela

“It’s always been our opinion that automatic expungement would be the very least government could do, in a society where there is a very high emphasis on crime and a criminal record could mean the difference between getting a job and not; or getting a visa and not,” Prince said yesterday. “It would be a travesty of justice if citizens had to pay to clear their names of this so-called crime.”

Prince said there were millions of South Africans who had been convicted on cannabis-related charges while the plant had been outlawed.

“The figures in my court papers showed for every year from 2013 until 2017, on average 250 000 people were arrested a year,” he said.

“It’s a staggering amount of people.”

Overall Prince was critical of the bill in terms of which buying and selling cannabis, smoking it in public, and being in possession of more than the allowed quantity would still remain illegal.

The bill proposes to cap the allowed quantity for an adult living alone at 600 grams of dried cannabis and in homes where there are two or more adults, at 1.2kg.

“It’s quite disappointing. The new bill still proposes to arrest people for cannabis related offences. It seems to completely miss the mark of the decision taken in the Constitutional Court. The problem of substance abuse is not a problem for the criminal justice system,” Prince said.

But its main flaw, he said, was that it did not consider “indigenous or historical traditions and uses.”

“It seeks to impose a foreign model and that’s not going to work in the South African context,” Prince said.

With just a month to go before the two years the Constitutional Court gave Parliament to bring the law up to scratch was up, Prince also complained that there had been no public participation so far.

“We established the council soon after the Constitutional Court decision, because we realised there had to be a conduit between the people and government but government is not engaging with us, especially the justice cluster,” he said.

Prince accused government of looking a gift horse in the mouth and ignoring the commercial and economic opportunities a developed cannabis industry presented.

“The conversation shouldn’t focus on substance abuse, it should be focused on job creation and using a very valuable resource for the benefit of our people,” he said, “The economy is a shambles right now but we have an opportunity to rebuild it with something sustainable, renewable and reliable”.

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