Cannabis & the Law with Simon Delaney – an Interview

Since September 2018, many of us have been living life as if cannabis became fully legal. However, this is not the case and it has only been decriminalised for personal and private consumption.

As exciting as this change in legislation was, it has left us with many grey areas and questions. We’re all wondering how much we’re legally allowed to grow, if we can travel with it and if so – how much, where can we travel with it and so on. It is for this reason that we had a quick chat about cannabis legalities with Simon Delaney. We got to know a little bit about him and how he got into the world of cannabis.

With that, we decided to send him a couple of questions and share his input with our audience.

What role has cannabis played in your life?

I’m a recreational smoker, a cannabis activist and lawyer who assists with cannabis-related arrests.

Tell us a bit about yourself and how you got involved with the plant.

I started using the plant about 10 years ago, halfway through my human rights law career. I’ve got my own law firm, so I have the luxury of choosing cases and projects close to my heart. I try to use the law to bring justice to cannabis users who are victimised and abused by the criminal justice system.

In your expert opinion, where do we currently stand in terms of cannabis legalisation?

We are currently in a legal holding pattern: the parts of the old laws that have been declared unconstitutional need to be changed by Parliament by 18 September 2020. In the meantime, there is limited legalisation of cannabis.

What do you think of the Cannapax debacle and the blatant abuse of traditional healer laws?

I don’t know enough about the Cannapax situation to comment specifically on that case, but there do seem to be a lot of charlatans running around, misrepresenting the law and selling bogus products. The Constitutional Court made it abundantly clear that there can be no trade in cannabis. Until the law changes (by Parliament) and regulatory structures are set up (by Government), no-one has the authority to sell licences, permits etc.

What can one do to protect themselves as a cannabis user in these uncertain times?

1) Know your rights; 2) Be polite and cooperative – yet firm – with the police. In the majority of cases, cannabis cases have no merit and will be withdrawn in court. The police know this. The police often intimidate and threaten in order to extract bribes. Do the right thing – don’t pay bribes. In a roadblock/street-stop situation, the police have no warrant to search you. Play for time, offer to accompany them to the police station. Make it worth their while to leave you and move on to the next victim.

What is the one thing we as individuals help to promote and grow awareness and positivity around the cannabis plant?

Remove the stigma. Educate non-users about the benefits of cannabis, especially in comparison to alcohol and tobacco.

Do you foresee South Africa being a premium distributor of cannabis globally in the next 10 years?

Not especially. South Africa is but one of many countries in the business.

Will government intervention help or demote the growth of this new booming industry?

I don’t have much faith in Government I’m afraid. Even our top court believes in the ‘dirty drug dealer’ narrative, so I suspect Parliament/Government will continue to ban trade and criminalise those earning an income from the plant.

If someone previously has a misdemeanour or offence for having cannabis on their person, how will the new laws affect these people?

The law on expungement of a criminal record requires a person to wait 10 years to clear their name. This probably won’t change – it’s not on the legislative agenda. But it results in an injustice for those bust with a bankie a few years ago. It’s potentially the next frontier for activism.

What are the current legalities around the possession of cannabis outside of one’s home?

The magic words are “personal use in a private space”. Fortunately, our law is quite expansive in its definition of both, so there is some wiggle-room to argue. It’s also difficult for the police to actually catch you in the act of buying/selling, so most users should not fear conviction, but should avoid arrest if possible. But being arrested is not the end of the world. Spend a night or two in a police station holding cell, get released on bail and have your case withdrawn in court after a few appearances. That’s probably the worst that can happen.

Ladies and gentlemen, we still have a long wait ahead of us until we find out what will be in store for the future of cannabis in South Africa. However, it would not be possible without people like Simon and their presence out there on the field. It is these people that we have to thank for the progression of legislation and for fighting for the rights of cannabis consumers in South Africa.

For any legal assistance, have a look at Delaney Attorneys – they’ll be there for you when you end up in a bit of a tricky situation!