South Africa's Cannabis Ruling: Expungement Still Stuck in Limbo

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Since September 2018, South Africans have technically been free to smoke a joint in their own living room without fear of arrest. That's the year the Constitutional Court struck down the criminal penalties around private adult cannabis use. Eight years on, though, the law that was supposed to formalize that right still hasn't switched on. The Cannabis for Private Purposes Act, signed by President Cyril Ramaphosa in May 2024, sits on the books like a car with no key in the ignition -- passed, published, but not yet running, because the regulations needed to operate it haven't cleared Parliament.

Meanwhile, the people carrying the actual cost of this delay are the ones with old convictions on their names -- some from ordinary magistrate's courts, others from the courts of apartheid-era homelands like Transkei and Bophuthatswana, which prosecuted cannabis offences under their own statutes before 1994. The Act promises to wipe many of these records clean. But a promise written into legislation that isn't yet in force is not the same as a cleared record, and thousands of South Africans have spent years waiting for a process that, until recently, existed mostly in outline. That changed somewhat in February 2026, when the Ministry of Justice finally published draft regulations that put hard numbers on possession limits and spelled out, step by step, how an expungement application is actually supposed to move through the system.

The Prince Judgment Started the Clock in 2018

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The case that started all this is Minister of Justice and Constitutional Development v Prince, decided by the Constitutional Court under case number CCT 108/17. The judgment was unanimous: criminalising cannabis use, possession, and cultivation by adults for private consumption could not be justified in what the Court called an open and democratic society. It was a privacy ruling more than a drug-policy one -- the Court reasoned that what an adult does with their own body inside their own home is not the state's business to police through criminal law, at least not to the extent the existing Drugs and Drugs Trafficking Act and Medicines Act allowed. What the Court did not do is legalise a cannabis market. Buying seeds from a stranger, selling a gram to a friend, advertising a strain online -- none of that was touched by Prince. The ruling was narrow by design, aimed squarely at private use between consenting adults in private spaces, and it explicitly left the messier question of commercial regulation to Parliament. Parliament was given two years to fix the underlying statutes. That deadline came and went in 2020 with no amending legislation in place, which left magistrates, prosecutors, and police officers to apply the Prince framework by feel -- deciding case by case what counted as a genuinely private, personal-use quantity versus something closer to dealing. For six years, that gray zone was the practical law of the land, and it produced exactly the kind of inconsistency you'd expect: outcomes that depended heavily on which station made the arrest and which prosecutor reviewed the docket.

The 2024 Act Exists on Paper, Not Yet in Practice

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The Cannabis for Private Purposes Act 7 of 2024 was meant to close that gap. Ramaphosa signed it into law on 28 May 2024, and on paper it does what Prince couldn't -- it sets out defined possession thresholds, cultivation rules, and the mechanics of expungement in actual statutory text rather than judicial inference. But signing an Act and commencing an Act are two different legal events in South Africa. A statute can receive presidential assent and still have no legal force until the President issues a separate proclamation bringing it into operation, usually published in the Government Gazette with a specific date. For the Cannabis for Private Purposes Act, that proclamation is contingent on a further step: the regulations that will govern how the Act functions day to day -- possession limits, cultivation caps, expungement procedure -- have to be finalised and approved by Parliament first. That's the bottleneck. Draft regulations only reached public comment in February 2026, nearly two years after the Act was signed, meaning the entire intervening period was spent under the same interim Prince arrangement that predates the legislation entirely. As of mid-2026, nothing has changed for the average person carrying cannabis for personal use -- they're still relying on the constitutional right established in 2018, not the codified rights Parliament wrote into a 2024 statute that remains, functionally, switched off.

How Expungement Is Supposed to Work

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Section 5 of the Act is where the expungement promise lives, and it's more ambitious than most people realise. It provides for automatic expungement of qualifying cannabis use and possession convictions -- not just those handed down in post-apartheid South African courts, but convictions from the pre-1993 homeland court systems, the parallel judicial structures that operated in territories like Transkei, Bophuthatswana, Venda, and Ciskei under apartheid's homeland policy. Those records have historically been among the hardest for people to get cleared, since they sit outside the standard national criminal record database in ways that complicate automatic processing. Where a conviction doesn't get swept up automatically, the draft procedure lays out a manual route. The applicant first needs a clearance certificate from the South African Police Service's Criminal Record Centre, confirming that the specific offence in question wasn't already caught by the automatic expungement provisions. That certificate, once obtained, has to accompany a completed Form 1 submitted to the Director-General of Justice and Constitutional Development. From there, the process has built-in timeframes. The Director-General's office sends the certificate back to the Criminal Record Centre, which is required to act within 14 working days. Once the Centre has that returned certificate in hand, SAPS is required to confirm the expungement to the applicant within a further 21 working days. Add it up and, on paper, a manual application should move from submission to resolution in around five to seven weeks -- assuming no backlog, no missing paperwork, and no disputed details about which court and which year the original conviction came from, which for older homeland-era records is not a small assumption.

New Draft Limits: 750 Grams a Day, Five Plants at Home

Under South Africa's 2026 draft cannabis regulations, private individuals could possess up to 750 grams of cannabis daily and cultivate up to 5 plants at home, highlighting a stark contrast in scale between possession and cultivation limits.

The February 2026 draft regulations are the first time the state has attached real numbers to the private-use right that's existed in principle since 2018. Published for public comment on 2 February 2026, with the window for submissions closing 5 March 2026, they propose that an adult may possess up to 750 grams of cannabis per day, whether in a private or public place. For cultivation, the cap is five plants per household grown in a private place -- a household limit rather than a per-person one, which matters for shared homes. The regulations don't stop at quantity. They also set out conditions for how cannabis has to be carried when it leaves the house -- rules around transport and concealment that are clearly aimed at drawing a line between a person walking home with a personal stash and someone moving product in a way that looks more like distribution. The more consequential detail, though, is what the draft regulations do to expungement. The Act's original framing leaned heavily on the word automatic. The draft rules published in February 2026 shift a meaningful share of that process onto an application basis instead -- meaning more people than the Act's text implied may need to actively file paperwork, get a SAPS clearance certificate, and submit Form 1, rather than simply having an old conviction disappear from their record without lifting a finger. That's a real change in the burden of proof and the burden of effort, and it's one of the reasons the public comment period matters: advocacy groups and legal aid organisations are expected to push back on how much of the promised automatic relief has quietly become conditional. Parliament still has to review the submissions before any final limits or procedures are locked in.

Commercial Cannabis Is a Separate, Slower Fight

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None of this touches the commercial side of cannabis, which is being handled as an entirely separate, slower-moving track. Prince never legalised sales, and the 2024 Act doesn't either -- buying, selling, and commercial-scale cultivation remain outside both frameworks, governed instead by whatever licensing regime eventually emerges from a different set of departments: Trade, Industry and Competition, Agriculture, Land Reform and Rural Development, and Health. Parliament's Portfolio Committee on Trade, Industry and Competition has already signalled that commercial regulation will need its own legislation, with a separate Cannabis Bill flagged for introduction by mid-2027. That bill is expected to address licensing for commercial growers, export permitting, and recognition for traditional and small-scale cultivators -- particularly in provinces like the Eastern Cape, where cannabis, often called dagga, has been grown informally for generations and where growers have lobbied hard not to be locked out by licensing costs designed for large agribusiness. The stakes are large. Estimates of South Africa's illicit cannabis market put its value around R36 billion annually, a figure that dwarfs the licensed medicinal and hemp sector operating under existing permits from the South African Health Products Regulatory Authority. Every year commercial legislation stalls is another year that trade stays almost entirely in the informal economy. On the export and financial-services side, there was at least one concrete data point of progress: South Africa was reinstated to Jersey's approved list of jurisdictions for cannabis-related business in June 2026, having been removed in 2023 amid concerns tied to the Financial Action Task Force's grey-listing of South Africa over anti-money-laundering shortcomings. That reinstatement suggests international financial gatekeepers are starting to treat South Africa's regulatory trajectory as credible again -- useful groundwork for a commercial sector that, for now, still has no domestic legal market of its own to plug into.

The distance between 2018 and 2026 is the real story here. A constitutional court can announce a right in a single unanimous judgment; turning that right into something a person can actually rely on -- a cleared record, a defined possession limit, a functioning application form -- takes years of regulations, gazettes, committee reviews, and proclamations that most people never see happening. South Africa's cannabis reform has been a working demonstration of exactly how much administrative machinery sits between a court's words and a citizen's daily life.

The automatic-versus-application question isn't a technicality. An automatic expungement clears a record whether or not the person knows the law changed, has internet access, can take time off work, or can afford transport to a police station for a clearance certificate. An application-based system puts all of that burden back on the individual -- often the same individual least equipped to navigate it, given how these convictions cluster among older, poorer South Africans with the weakest paper trails, especially those holding decades-old homeland-court records. If the final regulations lean too far toward application-only relief, the reform risks becoming a right that exists mostly for people who have the time and resources to claim it.

What happens next runs through two dates worth marking on a calendar: whatever Parliament does with the submissions from the March 2026 comment period, and the promised Cannabis Bill expected by mid-2027. Between those two, South Africa will finally decide not just what its cannabis market looks like, but whether the people carrying convictions from before it even had a cannabis market get to walk away clean.