Cannabis rules are never “just technical”: a CLS critique of South Africa’s Draft Cannabis Regulations (2025)

The Department of Justice and Constitutional Development has invited public comment on the Draft Cannabis for Private Purposes Regulations, 2025, issued under the Cannabis for Private Purposes Act, 2024. On one level, the draft looks like the kind of thing lawyers love: clear numbers, straightforward caps, and practical “do this, don’t do that” requirements for possession, cultivation, transport, and expungement. On another level, it is exactly the sort of text Critical Legal Studies (CLS) warns us not to treat as merely administrative.

CLS, as a legal philosophy, is sceptical of law’s claim to neutrality. It argues that legal rules can generate a kind of false comfort—what CLS calls false consciousness—where the public is encouraged to believe a legal regime is fair simply because its rules are framed as universal and rational. CLS also insists that law is inseparable from power: not always party politics, but the day-to-day politics of which interests a society protects, which anxieties it caters to, who is policed, who must prove compliance, and who gets the benefit of the doubt. CLS is also attentive to the interpretive turn: rules are rarely self-applying, and vague standards expand discretion, which in turn expands unequal outcomes. When you read the Draft Cannabis Regulations through this lens, the most important question is not whether the draft contains numbers that look reasonable, but what kinds of social relations it quietly produces and stabilises.

The draft’s headline rules are simple. Adults may possess up to 750 grams of cannabis in a private place, and—interestingly—up to 750 grams in a public place as well, “at any given time during the course of a single day”. Adults may cultivate up to five plants in a private place, regardless of size, shape, or strain. Adults may transport up to 750 grams. There is also a procedural framework for expunging certain cannabis-related criminal records through an application process supported by forms. As a first impression, it is tempting to say: the state has set limits, and now we can all move on. CLS would caution that this is where the story usually begins, not ends.

Start with the idea of neutrality. A single cap that applies to “an adult person” appears equal. But cannabis enforcement has never been experienced as equal, and there is little reason to assume that a new compliance regime will be policed evenly across different communities, especially where police presence, stop-and-search practices, and community surveillance differ drastically. When the law speaks in abstract universals, it can invite the public to focus on formal permission while ignoring how permission is distributed in practice. The risk is that legal change becomes symbolic: technically decriminalised, socially and institutionally still suspect. By allowing possession (750g), the state “buys” legitimacy from the public, making it harder to critique the remaining oppressive structures (like the silence/concealment laws). The state appears benevolent while maintaining control.

That risk becomes clearer in the transport provisions, which are the most culturally revealing part of the draft. The regulations require cannabis to be concealed from public view during transportation, stored in a boot, trunk, or enclosed compartment where possible, otherwise placed in a container designed to conceal it, or covered if the vehicle’s storage area is not fully enclosable. That might sound harmless, even sensible. But the draft goes further. It prohibits a driver from revealing to non-passengers that the vehicle is transporting cannabis. It also prohibits passengers from revealing to other people inside or outside the vehicle that the vehicle is transporting cannabis on a public road. In other words: concealment is not only physical, it is social and communicative. The draft does not merely regulate safe storage. It regulates what can be seen and what may be said.

This is one of those moments where CLS’s “law is politics” becomes less like a slogan and more like a description. A prohibition on disclosure is not primarily a safety rule. It is a rule about public meaning. It tells the ordinary person: yes, you may lawfully possess cannabis within limits, but you must still act as if it should not be visible or spoken about in public. It is managed decriminalisation, not normalisation. It preserves a moral distance between “private permission” and “public acceptance,” and in doing so it risks preserving stigma as a matter of legal design.

The next CLS concern is discretion, and discretion lives in vague standards. “Concealed from public view” sounds clear until you imagine the roadside stop. What counts as visible? Visible from which angle? Through which window? In what lighting? Does a partially open bag count? What about a container that is closed but identifiable? The more a standard depends on an official’s perception, the more power shifts away from the rule and toward the enforcer. CLS emphasises that interpretation is not an afterthought; it is where power enters the text. If the Department’s objective is legal certainty and consistent enforcement, then the draft should prefer objective compliance tests that are difficult to contest opportunistically. A requirement such as “stored in a closed container and not readily accessible to the driver” is easier to apply consistently than “completely concealed from public view,” and it is more directly connected to legitimate road-safety rationales.

The same interpretive instability appears in the clauses prohibiting the mixing of cannabis or the possession of cannabis mixed with any other substance transported on a public road. The draft does not define “mixed.” Many real-world cannabis forms and practices involve “mixtures”: pre-rolled products, edibles, oils, or products containing additional ingredients like vapes. A vague prohibition risks becoming a flexible enforcement tool rather than a predictable standard for lawful conduct. CLS would call this a classic gateway to unequal outcomes: the text looks strict and objective, but the real rule becomes “what the officer decides ‘mixed’ means today.”

There is also a subtler politics embedded in the draft’s private/public architecture. The law’s enabling framework is “private purposes,” and the regulations reinforce a vision where cannabis may be lawful, but only if it remains socially invisible in shared spaces. Even the cultivation cap—five plants regardless of size or strain—carries an implicit assumption that “private place” is a stable and equally available condition. Many adults do not have stable housing, secure yards, or living arrangements free from landlord or neighbour control. “Private place,” as a legal category, is not evenly distributed. That is not a reason to abandon regulation, but it is a reason to draft with awareness that the abstract individual of liberal legalism is not the real person who must comply. CLS’s warning is that a legal system can congratulate itself on granting private freedoms while ignoring the material conditions that make those freedoms real for some and illusory for others.

The expungement section illustrates this point in a different way. The draft provides a mechanism for the expungement of certain cannabis-related convictions through an application process: applicants must obtain a clearance certificate from the Criminal Record Centre of the South African Police Service confirming that the offence is on record and was not automatically expunged, and then submit an original application by hand or post to the Department. The Director-General may request further information, and the certificate is then forwarded to SAPS for expungement. On paper, this is a pathway to remedy. In practice, burdensome administrative design can become a gatekeeping mechanism. CLS is sceptical of remedies that exist formally but are difficult to access socially. The people most harmed by historic cannabis criminalisation are often those with the least spare time, the least transport flexibility, the least bureaucratic support, and the highest cost of repeated administrative steps. If the state’s intention is genuine repair, the expungement process should minimise procedural friction. Allowing email submission (with verification), providing assisted channels, and designing a stronger automatic expungement default would make the remedy more than a right on paper.

None of this is to deny that regulation is necessary. It is to insist that regulation is never only technical. Drafting choices about concealment, disclosure, definitions, and application procedures do cultural work. They tell the public what kind of citizen a lawful cannabis user is allowed to be: ordinary, or suspect; visible, or silent; trusted, or required to prove compliance at every turn. They also determine whether a post-prohibition regime reduces unequal criminalisation or merely shifts it into new compliance categories.

If the Department wants a framework that is not only administratively neat but socially legitimate, a few reforms would significantly improve the draft without abandoning its structure. First, replace vague “concealed from public view” language with more objective storage standards linked to safety and driver access. Second, reconsider blanket non-disclosure prohibitions that compel citizens to treat lawful conduct as shameful; storage rules can address practical concerns without legally mandating silence. Third, define “mixed with any other substance” clearly, or narrow it to specific, demonstrable harms. Fourth, redesign expungement access so that the remedy is easy to use for the very people it is meant to benefit, ideally by expanding automatic expungement and enabling digital submissions for exceptional cases.

CLS teaches that law often hides politics behind technique. The challenge for cannabis reform is to draft in a way that does not simply replace prohibition with a new set of discretionary, stigma-preserving controls. The promise of the post-prohibition era should not be “you may, but only if you hide.” It should be predictable rules, equal dignity in public life, and remedies that work in the real world.