Tag Archive: cannabis

Britons who legally smoke cannabis in the US ‘risk being deported’

Warning comes amid rise in expulsions under federal law – even in states where drug is legal

Don’t be fooled by the use of “Britons” in the headline. This article first appeared in the Guardian, a UK newspaper, hence the focus on Britons, but the warning applies to all visitors to the US. As cannabis legislation has relaxed here in South Africa, we are even more likely to feel “safe” when visiting a US state that has also legalised marijuana. Remember the US is a highly devolved jurisdiction, with many laws set by the states and, as a result, legislation varies considerably from state to state. But there is an anomaly that exists with cannabis law: at federal level it is still illegal, and immigration falls under federal law. Read on for more important information if you are planning to visit the US.

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A legal expert at an international immigration firm has warned British tourists and employees that if they smoke marijuana in the US, even in states where it has been legalised, they risk being barred from the country for life.

UK visitors can still be arrested and deported from the US even if they consume cannabis in states such as California and Colorado, where the drug is legal, said Charlotte Slocombe, a senior partner at Fragomen in London.

Slocombe says her firm and others that deal with US immigration laws have seen a rise in cases where British holidaymakers and green card holders, working legally in the US, are being expelled or denied entry because of cannabis consumption in states where it is legal.

She said in a scenario where Americans were caught by police smoking cannabis at a party, in a state where it was legal, they could not be arrested. British people and other foreign tourists at the same party, however, could be arrested, deported and branded unfit to re-enter the US.

The warning comes as a growing number of US states are expected to legalise cannabis, among them New York and New Jersey, which will follow 11 states, including Washington DC, that have made the drug legal. Despite that change, under US federal law the drug remains illegal – meaning that foreign visitors can be sanctioned.

“Canada legalised cannabis in 2018 but as the US customs and Border Protection keep saying, US federal law has not changed,” said Slocombe. “What is confusing to people is that while states in the USA have legalised cannabis it remains illegal federally.

“Even if you are a foreigner in a state where it’s legal, it’s still illegal for you federally. If, for example, you buy cannabis from a legal dispensary and that dispensary asks for your passport details as ID that information might be discoverable. It could then trigger, as can admission of drug taking, immigration issues because immigration is covered by federal law not state law.

“This is how people get caught out even though they think they are doing something which is now legal in that state. Equally that would include green card holders and those who hold visas to live and work in the US. Even for an American it is federally illegal, but because they are not subject to US federal immigration laws they would not be as vulnerable.”

Slocombe said federal law trumped state law, and as a foreigner this could trigger inadmissability under US immigration legislation.

“Don’t take any risks, while you are not breaking state law you are still breaching federal law. It’s too dangerous because the consequences are enormous and you might be ineligible for ESTA entry and a visa forever,” she said.

Slocombe warned it was not just cannabis consumers who ran the risk of being deported and potentially permanently barred from the US. Investors, shareholders or firms that supply equipment for legal cannabis producers in also run the same risk.

“There is one example I am aware of where two known investors in the US cannabis industry, who are foreigners and on visas, had their investment deemed illegal in federal law. Another example is a farmer who was on a visa and sold a portion of his land to a cannabis producer and filed US tax returns. That came up as an issue when he tried to apply to renew his visa.”

She said Fragomen had even advised non-US technology companies to be careful over supplying IT services to American cannabis companies.

“Customs and Border Protection state that they have the right to question you about your travel to the US and the industry you are in. So if you are going to do something related to the cannabis industry then yes you could find yourself inadmissible to enter the US.”

Reprinted with thanks to the Guardian

If you need help…

Although possession of cannabis for personal use is no longer illegal, the police are still getting to grips with the implications of the change in legislation. Therefore, any encounter with the law regarding dagga possession and use is best handled with the help of an experienced bail attorneyCape Town Bail Attorneys, Simon Dippenaar & Associates Inc. is a law firm in Cape Town are experts in criminal defence, with a reputation for handling after-hours bail. You can contact bail lawyers 24/7 and know that your call will be answered. Call Cape Town Attorney Simon Dippenaar on +27 (0) 86 099 5146.

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Cannabis: City announces joint venture

Cannabis to be grown for medicinal use in Cape Town

First in South Africa – Cape Town set to produce medical marijuana

In our practice and on this website we have followed the cannabis story closely, from the first ruling that cannabis consumption in private by adults would not be prosecuted on the basis of privacy laws, to the legalisation of cannabis for personal use by the Constitutional Court, to the passing of new legislation and the police directive by Police Commissioner General Khehla Sithole.

So we were delighted to learn that Cape Town is set to be the first place in South Africa to grow cannabis for medicinal use, in a partnership with Canadian company Canopy Growth. You could say it is a joint venture.

Cannabis creates jobs

Atlantis, 40 kilometres north of Cape Town, is a deprived area with high unemployment and a range of associated social problems. The cannabis initiative will make use of 12 hectares of vacant land in the area and will bring much-needed jobs to the local population and boost the economy. Approximately 250 jobs will be created in the Atlantis Special Economic Zone (ASEZ).

Medical innovation

The facility will cost R638 million to build, with a further R1.5 billion to be invested in Phase Two, over the next four years. The plant will produce cannabis-based pharmaceuticals, such as gel capsules, and puts South Africa in the global spotlight for medical innovation. One of the attractions of Cape Town as a location is our reputation for excellence in health care and health research.

South Africa ahead of the pack

South Africa is known for its progressive stance on many issues, backed by our robust, rights-based Constitution, which we at SDLAW take great pride in upholding. We were proud when South Africa introduced same-sex marriage and pleased when we legalised the private use of cannabis. As Cape Town attorneys we are delighted to see our fair Cape host the first venture of this sort in South Africa, once again proving that we lead the world in medical advancement, just as we did with the first heart transplant.

Here to help

If you need legal advice or assistance related to cannabis possession or consumption or on any other matter, contact Cape Town Attorneys on 086 099 5146 or email sdippenaar@sdlaw.co.za. We are now in Johannesburg and Durban too.

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Cannabis law – what Sithole told the police

Parliament has amended legislation regarding dagga use and police officers have received instruction from the Police Commissioner

 

Dagga possession and cultivation - the law changes

We wrote last year about the Constitutional Court ruling regarding dagga, or cannabis. The ConCourt judgement effectively decriminalised the possession and cultivation of cannabis in private by adults for personal consumption. The definition of “in private” extends beyond one’s place of residence and includes public spaces, as long as the possession is in a private place, e.g. a pocket, and is discreet.

However, a court judgement, even by the highest court in the land, is not in itself legislation. It was necessary for Parliament to amend legislation before the law could officially be declared changed in response to the ruling. In the interim, police were in the arguably awkward position of having to use their judgement and discretion when faced with circumstances of cannabis possession.

National Prosecuting Authority issues guidelines

Parliament has acted swiftly to change the relevant legislation concerning cannabis and the National Prosecuting Authority (NPA) has issued guidelines to prosecutors to ensure criminal procedure reflects the amended laws. These guidelines have also been delivered to the South African Police Service (SAPS) by Police Commissioner General Khehla Sithole. If you use dagga there are important things you should know.

Cannabis law rewritten

The two primary pieces of legislation concerning cannabis law are the Drugs and Drug Trafficking Act 1992 and the Medicines and Related Substances Control Act 1965. Both have been officially amended to reflect the Constitutional Court judgement. Other legislation, i.e. the Children’s Act 2005, the Child Justice Act 2008 and the National Road Traffic Act 1996, has also been impacted in a lesser way. The Drugs and Drug Trafficking Act and Medicines and Related Substances Control Act now specifically allow for the possession and cultivation of cannabis for private use. Personal consumption of dagga has been decriminalised.

Still an offence…

It is very important to note that dealing in cannabis is still a criminal offence, as is the use of cannabis by children or in the presence of children. Furthermore, driving under the influence of dagga contravenes the National Road Traffic Act, which prohibits “driving under the influence of a drug which has a narcotic effect”.

Smoking cannabis in public is not permitted – it is only the possession and not the use of the substance that is allowed in public, provided it is in a private space (pocket, bag, vehicle). So smoking in the street, in bars or at a rock concert is still an offence.

Determining private use

Because “private use” can take place outside the home, police officers must still rely on their judgement when they find someone in possession of cannabis. The legislation has not specified a quantity that defines private consumption or, conversely, one that constitutes dealing in the substance. Police officers must use discretion in deciding if the amount possessed is for personal consumption or not, and must furthermore ask a series of appropriate questions to satisfy themselves on the matter.

If the police officer is satisfied that the cannabis is for private consumption, then no arrest may be made and the substance may not be seized. If there is any doubt as to the intention to use the cannabis privately, the officer must not make an arrest but must rather open a docket and bring the individual to court by means of summons.

Cannabis law summarised

In summary, here’s what the amended legislation has decriminalised…and still prohibits:

  • Adults may use or possess cannabis in private for personal consumption
  • Adults may cultivate cannabis in a private place for personal consumption
  • Private use is not confined to a home or private dwelling
  • No quantity has been prescribed as constituting private use

  • Possession or use by a child (under age 18) is still prohibited
  • Use of cannabis around a child is prohibited
  • Dealing in cannabis is prohibited and is still a serious criminal offence
  • Cannabis use “not in private” is an offence

Police are accorded a large amount of discretion, which may lead to inconsistencies in implementation. Where there is a clear indication that the cannabis does not qualify as personal consumption (which the guidelines define as “large quantities” and/or an “unsatisfactory explanation”), then normal police procedure must be followed. This includes seizure of the cannabis and the registering of criminal charges and may or may not include arrest, depending on circumstances (e.g. if the suspect poses a flight risk). How these guidelines may be interpreted by different police stations or officers remains to be seen.

Legal advice is still a good idea

The amendments to cannabis use legislation are fresh and the police directive has only recently been issued. It is reasonable to expect police officers to require a period of adjustment. Therefore, any encounter with the law regarding dagga possession and use is best handled with the help of an experienced bail attorney. Cape Town Bail Attorneys, Simon Dippenaar & Associates Inc. is a law firm in Cape Town are experts in criminal defence, with a reputation for handling after-hours bail. You can contact bail lawyers 24/7and know that your call will be answered. Call Cape Town Attorney Simon Dippenaar on +27 (0) 86 099 5146 or +27 76 116 0623.

 

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Dagga – It’s now legal – The Con Court ruling explained

Dagga legalisation in South Africa

Dagga legalisation has been big news in the past week. But what exactly does it mean in practice?

Since last week’s Constitutional Court ruling on the possession of dagga for private use, SD Law has been inundated with queries about the practical implications of this decision. How does it differ from last year’s Western Cape High Court ruling? Is possession of dagga now legal? We attempt to answer your questions.

 

The High Court ruling

If you’ve been following our blog you’ll remember that we wrote recently about the difference between possession of marijuana – dagga or cannabis – and intent to deal (read more). We also covered the 2017 Western Cape High Court ruling that allowed the use of dagga by adults at home (read more).

Last year’s ruling cited the right to privacy guaranteed by our Constitution, and allowed for this right to be used as a defence if charged with possession in your own home. As we’ve pointed out previously, that decision did not legalise marijuana use, but it did pave the way for Parliament to enact a change in legislation.

 

What the Constitutional Court ruling means

The Constitutional Court decision of 18 September 2018 went further than the 2017 High Court ruling in that it effectively decriminalised the possession and cultivation of cannabis in private by adults for personal consumption. It’s important to note that the Con Court does not make the laws; it can only rule on the constitutionality or otherwise of existing laws. However, if a law is found to be unconstitutional, the onus is then on Parliament to remedy the fault in the law. So, the law criminalising possession of marijuana is still on the statute books, but the order has been suspended. The Court has provided interim relief that renders it unlawful for the police to arrest adults for private cultivation, possession and use of small amounts of cannabis. Parliament should enact a change in legislation within the next two years.

 

How much is a small amount?

As we explained in our blog post on possession last month, the historical threshold of 115g has been relaxed, in favour of a more pragmatic approach to determining intent. The burden of proof is now on the State to show that the accused intended to supply the dagga in his or her possession to someone else for profit. This might hold true for an amount less than 115g, or a quantity in excess of 115g could still be purely for personal use.

Last week’s ruling did not contain any indication of the quantities that would be considered ‘for private consumption’. It acknowledged that the greater the amount held, the greater the likelihood that dealing would take place. However, it reinforced the onus on the State to prove intent and ensured that police officers would give a potential accused the benefit of the doubt. According to Deputy Chief Justice Raymond Zondo, “…there will be cases where it will be difficult to tell whether the possession is for personal consumption or not. In the latter scenario a police officer should not arrest the person because in such a case it would be difficult to show beyond reasonable doubt later in court that that person’s possession of cannabis was not for personal consumption.”

 

The definition of ‘private’

Another point of difference between the Con Court and the High Court rulings is the definition of privacy. Whereas the High Court was quite specific about the right to privacy providing a defence if found in possession in one’s own home, the Con Court did not specify in the judgement what constitutes a private place. Rather, the Court modified last year’s Order to reflect that a ‘private place’ can extend to more than just one’s literal home. It is probably safe to assume that a home, office, pocket, storage facility or car would amount to a private place.

 

Cultivation

The Con Court ruling also specifically allowed for cultivation of cannabis for private use, and went on to define privacy in the context of cultivation: “An example of cultivation of cannabis in a private place is the garden of one’s residence. It may or may not be that it can also be grown inside an enclosure or a room under certain circumstances. It may also be that one may cultivate it in a place other than in one’s garden if that place can be said to be a private place.”

 

What is the right to privacy?

The right to privacy simply means the right to live your life without interference from the State or from other individuals or entities. The right to privacy is enshrined in the United Nations Universal Declaration of Human Rights: “The Right to Privacy. Nobody should try to harm our good name. Nobody has the right to come into our home, open our letters, or bother us or our family without a good reason.”

Given the iniquitous abuse of this right in the apartheid era, it is unsurprising that our Constitution upholds the right to privacy as a pillar of a fair and just society. The Court stated, “A very high level of protection is given to the individual’s intimate personal sphere of life and the maintenance of its basic preconditions and there is a final untouchable sphere of human freedom that is beyond interference from any public authority. So much so that, in regard to this most intimate core of privacy, no justifiable limitation thereof can take place…”

 

A global trend

South Africa joins 33 jurisdictions around the world where the use of cannabis has been decriminalised or legalised. Canada is the most recent to liberalise its laws on possession and cultivation, with some variance from province to province on the details (e.g. number of plants allowed to be grown and where) but an overall national legalisation framework. The US also has state-by-state legislation, with some states fully decriminalised, some allowing medical use only and some still criminalising all use; but a growing number of states allow recreational use and cultivation, with a varying number of plants permitted to be grown depending on the state.

 

No deal

Remember it is still illegal to deal in dagga! If you grow or carry cannabis for sale or supply to others, you are breaking the law. The relaxation in approach does not extend to dealing in the substance. The right to privacy will not protect you if you sell marijuana, or if you consume it in a public place. Enjoy the new freedom, but don’t abuse it. Consume cannabis responsibly or you could still fall foul of the law.

 

If you have been charged with possession…

Ordinarily, under the doctrine of objective Constitutional validity, the moment a law is declared unconstitutional, the legal position is that the law has always been so. The implications for criminal law are that any prior convictions are invalid, and will be set aside. To prevent disorder, Courts may postpone or suspend the operation of invalidity. In this case, the Court rejected retrospective operation. This means that previous convictions stand. If you would like more information, feel free to contact us – we’re here to help.

 

Contact us

Cape Town Law firm, Simon Dippenaar & Associates Inc. can help. If you need advice regarding a charge of possession or dealing, call Cape Town Attorney Simon immediately on +27 (0) 86 099 5146 or contact us. It is important to know your rights and have legal representation to ensure you are treated fairly and within the law, especially if the police have acted without full knowledge of the recent changes.

Further reading and latest update:

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Cannabis – possession or dealing? There’s a big difference!

Cannabis possession vs dealing

 

Cannabis – The seriousness of the crime and the sentence are much greater for dealing, but what determines dealing vs. possession?

 

Many of you may recall that last year the Western Cape High Court ruled that cannabis (dagga or marijuana) can be used by adults in the privacy of their own homes, and may be cultivated for private use (read more). This ruling was founded on the right to privacy. However, it did not decriminalise or legalise cannabis use. It simply allowed for the defence of privacy if charged with possession in your own home. If you are found in possession of dagga outside your home, you are still subject to the full force of the law.

But what is the law? Confusion surrounds the specifics of the offence of possession vs. dealing in cannabis. Here’s how it works.

 

How much cannabis is too much?

Possession of marijuana is illegal and punishable in terms of the Drugs and Drug Trafficking Act 140 of 1992. The amount of cannabis you can possess for your own use is 115g or less. Historically, quantity was the determining factor when an arrest was made involving cannabis – below 115g, the charge was possession. Above that quantity, the charge was the much more serious offence of intent to supply (dealing).

 

Other criteria

Recent cases have challenged the use of quantity as a simple measure of whether or not an accused is holding cannabis for personal use or for supply to others. The Constitutional Court has overturned the previous presumption that placed the burden of proof on the accused. What this means is that, in the past, someone accused of intent to supply, on the basis of possessing more than 115g of cannabis, had to disprove the accusation. Disproving anything is much harder than proving it, so it was often difficult for justice to be fairly served.

Now the State must prove beyond a reasonable doubt that the intention of the accused is to deal. A range of criteria is used to ascertain the purpose of the cannabis in question. For example, is there any profit involved? Someone could be transporting a quantity of cannabis above 115g from a source to a recipient, purely as a friend or conduit. If the go-between does not earn any income from the transaction, but simply transports the drug from one person and delivers it to another, it can be argued that he is not dealing, regardless of the amount on his person at time of arrest.

Of course the opposite can also be true. It is possible to be accused of intent to supply cannabis even if the amount held is below 115g, because the factors used to determine intention are more sophisticated. So breaking a large transaction down into small units will not protect you from a charge of intent to supply, if that is the true purpose of your possession of cannabis.

 

Why it matters

Possession of cannabis is a relatively minor offence. Punishment may include a fine and/or community service. Intent to supply – dealing, on the other hand, can be quite serious, potentially resulting in a custodial sentence. It is also a much more significant crime to have on record, impacting on future employment prospects. So the distinction between possession of cannabis for personal use and intent to supply is a critical one.

 

Contact us

If you are found in possession of dagga, call Simon immediately on 087 550 2740. It is important to know your rights and have legal representation to ensure you are treated fairly and within the law. If you or someone you know has been charged with intent to supply and you need advice, call Simon now or contact us now.

Further reading and update:

Cannabis law – what Sithole told the police

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Medical marijuana South Africa – a licensed affair

Medical marijuana South Africa

Medical Marijuana

As we covered previously, on 31 March the Western Cape High Court ruled that marijuana (cannabis or dagga) can be used by adults in the privacy of their own homes, and may be cultivated for private use. Even before that groundbreaking verdict, South Africans were using marijuana privately for medicinal use, and were doing so legally. So has anything changed as a result of the High Court decision?

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A joint account – just how legal is marijuana following the High Court ruling?

Marijuana Legal in South Africa High Court Details
On 31 March the Western Cape High Court ruled that marijuana (dagga or cannabis) can be used by adults in the privacy of their own homes, and may be cultivated for private use. The decision was based on the view that banning use of marijuana is an infringement of the right to privacy. Undoubtedly this was cause for celebration for many people in South Africa. But some of the jubilation may have been premature. This ruling does not mean that marijuana use has been decriminalised. Let’s look at exactly what is and is not allowed as a result of the judgement.

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To legalise marijuana, or not to legalise? That is the question.

Legalise Marijuana in South Africa

There is no ‘one size fits all’ approach to dealing with marijuana. Information about the advantages and disadvantages of drug use is widely available but everyone interprets that information differently to arrive at their own conclusions, often widely divergent.

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