South Africa's Cannabis Law Still Leaves Khoi and San Growers Out

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On 28 May 2024, South Africa's president signed the Cannabis for Private Purposes Act into law, closing out a legal saga that had dragged through the Constitutional Court and multiple parliamentary deadline extensions. Two years on, the law still isn't something an ordinary adult can point to and say, this is exactly what I'm allowed to do. It needs regulations to function, and those regulations only appeared in draft form on 2 February 2026, with public comment closing a month later on 5 March. Read closely, the draft does two things at once: it sets specific numbers for personal possession and home cultivation, and it explicitly refuses to touch the harder questions of commercial growing and traditional cultivator recognition, kicking those down the road to other departments entirely.

That second move matters more than it looks. Khoi and San communities in South Africa have grown and used cannabis, known locally as dagga, for generations that predate any modern statute by centuries. Yet under the law as drafted, they have no recognized legal category as cultivators, healers, or knowledge-holders of the plant. This is a story about a gap, not a scandal: personal freedom is expanding for individual adults with a private garden, while the people with the deepest historical claim to the plant itself are told, again, to wait for a later regulation that doesn't yet have a date attached.

What the Cannabis for Private Purposes Act Actually Does

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The Cannabis for Private Purposes Act, formally Act No. 7 of 2024, exists because the Constitutional Court told Parliament it had no choice. Back in 2018, the Court ruled that criminalizing private adult cannabis use and cultivation at home was unconstitutional, and it gave lawmakers a deadline to fix the statute books. Parliament missed that deadline, got an extension, missed it again, and eventually produced this Act six years after the original ruling. That history is worth knowing because it explains why the law feels rushed at the edges even now: it was built under judicial pressure to solve a narrow constitutional problem, not to design a comprehensive cannabis economy.

Signing the Act into law didn't switch anything on. Like a lot of South African legislation, the CfPPA needs supporting regulations before it has real teeth, and those regulations took until February 2026 to surface in draft form. The Department of Justice and Constitutional Development published them on 2 February, opening a public comment window that ran through 5 March 2026. The draft sets concrete numbers: up to 750 grams of cannabis and up to five plants per adult, cultivated and kept in a private place. Those figures give police, prosecutors, and ordinary users something measurable to work with for the first time.

What the draft does not do is arguably more consequential. The Department of Justice states plainly that commercial cultivation, buying, selling, and any recognition of traditional growers sit outside this Act's scope. Those questions get handed off to the Departments of Trade, Agriculture, and Health, each with its own timeline, priorities, and legislative vehicle. In practice, that means the private-use side of cannabis law is finally catching up to the Constitutional Court's 2018 ruling, while the commercial and cultural recognition side hasn't even started its own clock.

Dagga Before the Law: Khoi and San Historical Use

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Dagga isn't a recent import to southern Africa. Cannabis cultivation and trade routes through the region stretch back centuries, arriving via East African and Indian Ocean trade long before European colonization reshaped land use and law across the Cape. Khoi and San communities are among the earliest documented users of the plant on the subcontinent, incorporating it into daily and ceremonial life well before anyone in Cape Town or Pretoria thought to write a statute about it. That history sits awkwardly alongside a legal system that, until very recently, treated any cannabis cultivation as a criminal offense regardless of who was growing it or why.

The friction between that customary practice and state enforcement surfaced directly during the 2020 parliamentary hearings on the original Cannabis for Private Purposes Bill. The Marijuana Board of South Africa testified before lawmakers on behalf of traditional leaders, traditional healers, and the Rastafari community, laying out how existing enforcement patterns collided with lived practice. One account from that testimony has stuck with advocates since: a Khoi king was harassed by police for planting marijuana at the Union Buildings in Pretoria, the seat of the national government itself. It's a small, sharp illustration of the distance between customary authority and statutory law, playing out at the literal doorstep of the institution meant to reconcile the two.

Despite that documented history and that testimony on the record, no dedicated legal category exists today for Khoi or San traditional cannabis cultivation or medicinal use. The CfPPA's personal-use framework treats every adult grower the same, whether they're a hobbyist with a balcony planter or someone continuing a cultivation practice that predates the South African state itself. Flattening that distinction isn't necessarily malicious, but it does mean the law has, so far, found no mechanism to distinguish customary practice from ordinary personal use, let alone protect it.

The Traditional Health Practitioners Act Doesn't Cover Cannabis

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South Africa does have a law recognizing traditional healers as legitimate practitioners: the Traditional Health Practitioners Act. On paper, it seems like the natural home for resolving how traditional medicine intersects with cannabis. In practice, SAHPRA (the South African Health Products Regulatory Authority) and the South African Police Service have jointly warned that the THP Act creates no legal mechanism for anyone to sell cannabis or cannabis-related products, unless those products already carry an exemption under the Medicines Act. Registration as a traditional health practitioner does not, by itself, authorize dispensing cannabis.

The reason traces back to how the THP Act defines traditional medicine in the first place. That definition specifically excludes any dependence-producing or dangerous substance or drug, and as currently interpreted by regulators, cannabis falls squarely inside that exclusion. So a registered practitioner can be fully recognized by the state as a healer, and still have zero legal standing to work with the plant that features in their actual practice. It's a definitional gap rather than an oversight anyone chose deliberately, but the effect on the ground is the same either way.

That gap hasn't gone unnoticed by opportunists. SAHPRA and SAPS have flagged illegal businesses marketing themselves as franchises supposedly authorized to deal in cannabis under the THP Act, a claim that has no basis in the actual statute. These operations exploit the genuine confusion around what traditional health practitioner registration does and doesn't permit, misleading both practitioners looking for a legitimate pathway and members of the public buying from them in good faith.

The people caught in the middle are the practitioners themselves. They're recognized, licensed, and respected under one law, while remaining functionally unlicensed to dispense the plant many of them have used in treatment for years. Until the THP Act's definition is amended or a separate cannabis-specific licensing pathway is built for traditional medicine, that contradiction just sits there, unresolved by any of the four departments currently touching cannabis policy.

Grassroots Pressure: From the Western Cape to Mpondoland

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While national departments draft regulations in Pretoria, organizing has been happening at ground level. A December 2025 webinar series called Breaking the Grey Zone connected Khoisan communities in the Western Cape directly with traditional growers in Mpondoland working through the Township Cannabis Incubator, a program supporting small-scale cultivators in navigating the emerging legal framework. Geographically these are very different communities, separated by hundreds of kilometers and different cultivation traditions, but the sessions surfaced a shared message aimed squarely at government: stop the police harassment of legacy growers, and open the door to free trade in cannabis for people who've been growing it long before any license existed.

Thabo Makwetla, co-founder of the Marijuana Board of South Africa, has been one of the more direct voices in that conversation. He's argued that whatever cannabis law comes next needs to let legacy communities actually earn a living from the plant, not just avoid arrest for growing it privately. That's a distinction worth sitting with: decriminalization solves the risk of prosecution, but it does nothing for someone whose household income has depended on cannabis cultivation for a generation. Makwetla has called for an urgent review of the broader licensing regime on those grounds.

South African Cannabis Central Association has put forward a more concrete structural answer through what it calls Project Indlela. The proposal sets up three tiers: GACP-Light for basic good-agricultural-practice compliance, GMP-Light for a mid-level manufacturing standard, and Full GMP for operators aiming at pharmaceutical-grade export markets. The idea is that traditional growers, small cooperatives, and large commercial operators could each plug into the tier matching their actual scale and resources, rather than all being forced through one expensive compliance gate designed with big operators in mind.

That design choice isn't abstract. South Africa has already watched this exact failure mode play out in other legal cannabis and hemp reforms across the continent, where licensing costs and paperwork requirements ended up favoring well-capitalized entrants while small-scale and traditional growers were priced out entirely. Project Indlela and the Breaking the Grey Zone coalition are explicitly trying to head that off before the commercial regulations, still sitting with the Departments of Trade, Agriculture, and Health, get finalized.

A Precedent Already Exists: The Rooibos Benefit-Sharing Deal

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South Africa doesn't have to invent a benefit-sharing framework from scratch, because it already built one, for a different plant. In 2019, the country finalized a benefit-sharing agreement covering rooibos, the indigenous fynbos plant used to make the popular herbal tea. That agreement traces back to a 2010 claim filed by the San Council of South Africa, asserting indigenous knowledge rights over rooibos under the country's Biodiversity Act. It took nearly a decade of negotiation between industry, government, and San and Khoi representative bodies to land on terms.

Those terms weren't symbolic. By 2022, roughly R12.2 million had been paid out to Khoi and San representative bodies under the rooibos agreement, funded by a levy on rooibos producers and processors tied to their use of the plant. That's real money moving from a commercial industry to indigenous knowledge holders, administered through a legal mechanism that South African law already recognizes and enforces.

The comparison to cannabis is almost too clean to ignore. Both are indigenous plants with documented Khoi and San use predating colonial-era law. Both have since become commercial industries built partly on that traditional knowledge base. Rooibos got a benefit-sharing framework because the San Council filed a formal biodiversity claim and industry and government negotiated a resolution over years. Cannabis has no equivalent scheme, despite Khoi and San communities holding a comparably strong historical claim to the plant, and despite testimony on record since at least 2020 describing exactly this gap.

Advocates working on cannabis policy have started pointing to rooibos directly as the template worth adapting rather than reinventing. The legal machinery, a biodiversity knowledge claim triggering a negotiated benefit-sharing agreement, already exists and has already survived a full decade of implementation. What's missing isn't a legal pathway. It's a department willing to open one for cannabis the way the Department of Environmental Affairs eventually did for rooibos.

Strip away the department names and comment periods, and the current state of South African cannabis law comes down to one honest admission: it solves the easy problem and leaves the hard one untouched. Adult possession and home cultivation, the question the Constitutional Court forced Parliament to answer, now has actual numbers attached to it in draft regulations. Who gets to legally grow cannabis commercially, sell it, and heal with it as a traditional medicine, the questions Khoi and San communities and registered traditional practitioners have been asking for years, remains split across four different departments with no unified timeline between them.

That delay isn't cost-free. Every month the commercial and traditional-recognition regulations stay in draft limbo is another month legacy growers in the Western Cape and Mpondoland operate in the same grey zone that produced a Khoi king's harassment at the Union Buildings decades ago. The specifics have changed, license applications instead of outright prohibition, but the underlying dynamic, customary practice colliding with a state apparatus that hasn't built a category for it, hasn't moved much.

The rooibos benefit-sharing agreement proves this isn't a matter of legal impossibility. South Africa has already shown it can take a biodiversity knowledge claim from Khoi and San representative bodies and turn it into a funded, functioning agreement with a commercial industry, one that had paid out over R12 million by 2022. The template exists, tested, and it survived a decade of real-world implementation. The open question now isn't whether South African law can accommodate indigenous recognition inside a plant economy. It's whether the officials currently dividing cannabis policy between Trade, Agriculture, Health, and Justice will bother adapting that template, or whether Khoi and San growers will still be waiting for a regulation when the next comment period closes.