Convicted for possession of cannabis?

Your conviction is not wiped clean yet!

What happens to convictions for possession of cannabis, now that the law has changed? Are criminal convictions automatically expunged, because the offence is no longer illegal? Or is a conviction forever based on the law in force at the time the offence was committed? We explain.

Decriminalisation for personal use

In late 2018, many South Africans celebrated the decriminalisation of marijuana for personal use in the country. The Constitutional Court ruled that laws prohibiting cultivation and consumption of cannabis, or “dagga”, in private were unconstitutional.

In response to the ruling, in September 2020 the government published the draft Cannabis for Private Purposes Bill for public comment. However, until the Bill is finalised, South Africa remains in a legal limbo around cannabis, leaving users and growers uncertain about the extent of the law.

The committee of Parliament working on the Bill hopes the new Bill will be passed during the 2022/2023 sitting of Parliament.

Cannabis possession convictions 

Government is now considering all legislative options to expunge the criminal records of people who never appeared in court but paid admission-of-guilt fines for the possession of cannabis.

One of the significant implications of the Bill is that the criminal record of an individual who was convicted for the use and possession of cannabis will be expunged (cleared). This provision is found in Section 8, which requires these criminal records to be expunged automatically by the Criminal Record Centre of the South African Police Service. No provision is made for a specific time period that must pass in order to qualify for an expungement.

Therefore, once the Bill is passed, any criminal record for the use and possession of cannabis should automatically be cleared. If  it is not, offenders under the previous law can apply in writing for their criminal record to be expunged.

In the meantime…

However, this is not the current legal position. What can be done in the interim? The law allows convicted offenders to apply for expungement of certain criminal records, not only for possession of cannabis.

According to Section 217B(1) of the Criminal Procedure Act, an individual can apply to have their criminal record expunged if:

• It has been 10 years since the date of the conviction (if they were 18 or younger when convicted they can apply after five years).
• It was a minor offence, such as petty theft or shoplifting.
• They were not convicted of any other offence and were given the option of a fine rather than imprisonment.
• They were told that by paying a fine they would not receive a criminal record and have subsequently discovered that they do have a record.
• They were fined less than R20 000.
• They received a suspended sentence.
• Their name has been removed from the National Register of Sex Offenders or the National Child Protection Register, if relevant.

Conviction less than 10 years old

If the conviction is less than 10 years old, in the case of cannabis possession it is a bit more complicated. The Constitutional Court judgment in 2018 expressly stated that its effect was not retrospective, to ensure the justice system was not destabilised.

However, many feel it would be unfair to require someone to wait a decade before they can apply to clear their record, in light of the judgment declaring laws criminalising cannabis unconstitutional in the first place. Activists and lawyers are seeking clarity from the Director-General.

Prisoners currently serving sentences for cannabis possession

Justice and Correctional Services Minister Ronald Lamola said, “The 1 041 people serving prison sentences would have to apply to President Cyril Ramaphosa for pardons. This does not, however, mean that all applications would be granted as our law makes no provision for a general amnesty or for the scrapping of criminal convictions.”

Be patient 

As the Cannabis for Private Purposes Bill has not yet been passed into law, the 10-year rule for expungement of criminal records still applies.

If and when the Bill becomes law, individuals previously convicted for the use and possession of cannabis will have their criminal records cleared. Until then, the cannabis laws in place must be observed.

Let our law firm help you

Cape Town attorneys SD Law & Associates Inc. are criminal attorneys and bail lawyers. Speak to us to find out more about having your criminal record wiped clean or about any other aspect of criminal law. Call Simon on 086 099 5146 or email simon@sdlaw.co.za

Further reading:

• Criminal record? Wipe it clean
• Cannabis grow clubs declared illegal
• Cannabis – possession or dealing? There’s a big difference!
• Dagga – It’s now legal – The Con Court ruling explained

SD Law

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