Cannabis for Private Purposes Bill: public hearings day 1

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Justice and Correctional Services

31 August 2021
Chairperson: Mr G Magwanishe (ANC)
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Meeting Summary

Video

In the first of three days of public hearings, held virtually, the Committee heard six oral submissions on the Cannabis for Private Purposes Bill.

Mr Jeremy Acton rejected the Bill in its entirety, arguing that it violated the right to privacy. He objected in particular to the Bill’s criminal sanctions, limitations on the possession and cultivation of cannabis, and prohibitions against selling cannabis and driving under the influence of cannabis.  

The Cannabis Development Council of South Africa (CDCSA) indicated that the Bill unworkable in its current form. Procedurally, it was incorrectly tagged as a Section 75 bill, when in fact it affected indigenous customs and the provinces. Substantively, it was narrow and exclusionary, and mistakenly sought to regulate cannabis through the criminal penal code and through arbitrary distinctions among different cannabinoids. CDCSA proposed replacing the Bill with a broader, holistic cannabis bill, which should promote and regulate the use of cannabis for a variety of private, commercial, and medicinal purposes.

The Congress of South African Trade Unions (COSATU) welcomed the Bill, but agreed with CDCSA that it missed the opportunity to set out a comprehensive and decisive framework for the cannabis sector. COSATU proposed amending the Bill so that it would address all aspects of the cannabis industry, including the sale of dagga; rescind the criminal records of those previously convicted of cannabis possession; and explicitly protect and assist small growers.

The Eastern Cape Department of Rural Development and Agrarian Reform reported on input that it had solicited from members of the public in the Eastern Cape. Members of the public had complained that the Bill had been drafted without sufficient consultation with traditional leadership and the public. They also complained that the Bill was unconstitutional; was unduly punitive; would have high enforcement costs; and effectively criminalised traditional and religious uses of cannabis, by overzealously restricting the quantities of cannabis allowed for cultivation and possession. They proposed additional protections for intellectual property and plant breeders’ rights, and agreed with COSATU about the expungement of criminal records.

The Centre for Child Law was broadly supportive of the Bill, but held that the current version was unacceptable insofar as it failed to sufficiently protect children. The Centre’s central concern was that the Bill set out criminal offences which would also apply to children – an unconstitutional approach and one which failed to properly assist families who faced substance abuse problems. 

Schindlers Attorneys opposed the current Bill as inappropriately and disproportionately punitive, and therefore as irrational and inconsistent with Section 36 of the Constitution. It argued for an overhaul of existing drug legislation, including a complete revision of the Drugs and Drug Trafficking Act. In respect of the Bill itself, it argued for regulating cannabis at the point of sale, rather than at the point of cultivation and possession.

All the submissions lodged significant objections to the Bill in its current form, and some promised to challenge it in court. Multiple submissions also agreed that the Bill was too narrow, especially in comparison to the broad objectives of the National Cannabis Master Plan. Thus the central question that occupied the Committee was whether the Bill should be significantly expanded, or indeed replaced by a broader cannabis bill which could also regulate the commercialisation of cannabis.

Other concerns discussed were the apparent paucity of public consultation on cannabis policy and legislation, as flagged by several submissions, and the tagging of the Bill as a Section 75 bill. Members were interested in the potential retrospective application of the law, and in the possibility of addressing cannabis-related problems through social development rather than criminal justice. They also asked the organisations to respond to the Department of Health’s warnings about the health risks and substance abuse risks presented by cannabis.
 

Meeting report

The Chairperson said that Members had been sent the programme for the public hearings, and the Committee would stick closely to that schedule. It would receive 27 oral submissions over three days. Members should therefore ask their questions concisely.   

Mr W Horn (DA) agreed. During public hearings, Members were supposed to listen more than they spoke.

The Chairperson said that the Committee would also be meeting for the duration of the next day and of Thursday afternoon. Its programme was packed. It wanted to do as much as it could to process the Cannabis for Private Purposes Bill, but it also had to process the Criminal Procedure Amendment Bill before the December deadline laid down by the Constitutional Court, as well as hold interviews for vacancies at the Information Regulator. So the Committee had to make efficient and effective use of all the time it had.

The Committee adjourned for a tea break. 

Upon the Committee’s return, the Chairperson repeated his opening remarks for the benefit of Members who had joined the meeting late.

Adv S Swart (ACDP) asked the Chairperson to explain how the Committee decided who to invite to public hearings. Obviously, not everybody who made a written submission could also make an oral submission, but he thought members of the public would be interested in hearing the criteria that the Committee used. He was grateful that the public hearings had been extended at his request.

The Chairperson explained that when the Committee solicited public comments, the advertisement asked respondents to indicate whether they wished to make an oral submission as well as a written submission. Everyone who had indicated that he wished to make an oral submission had been extended the opportunity to do so during the public hearings. However, the Committee considered every submission – whether written or oral – and the relevant departments would respond to all submissions after the public hearings were complete.

Dr W Newhoudt-Druchen (ANC) requested that everyone making oral submissions should switch on their cameras if possible.

Mr X Nqola (ANC) said that he would have to leave the meeting briefly to attend the Portfolio Committee on International Relations and Cooperation meeting, which was electing a new chairperson.

Mr Horn joked that Mr Nqola hoped to be elected himself.

Oral submission: Mr Jeremy Acton

Mr Jeremy Acton, leader of Iqela Lentsango (the Dagga Party), said that he rejected and “vetoed” the Cannabis for Private Purposes Bill in its entirety. He wished to inform the government that he would never comply with the Bill and would litigate it if it was enacted, and he called on members of the public to “militantly” resist its enforcement.

Mr Acton said that the Bill infringed upon the right to privacy and therefore contravened the Constitutional Court judgement on private cannabis use. Among his objections were that the Bill sought to:
- Amend the National Road Traffic Act to allow cannabis breathalyser tests;
- Monitor and limit the quantities of cannabis possessed and cultivated by individuals; 
- Prohibit private cannabis transactions among consenting adults; and
- Impose criminal sanctions, thus promoting a “fascist” and “police state drug war” approach.

 

(See Presentation)

Discussion

Mr R Dyantyi (ANC) said that he welcomed Mr Acton’s “vigorous” submission. However, as the Chairperson had said, speakers should ensure that they stuck to the time limits agreed upon in the programme – Mr Acton had spoken for longer than scheduled.

Adv Swart said that he did not understand how Mr Acton could “veto” a bill, but he appreciated his passion. However, he would have liked Mr Acton to suggest amendments to improve the Bill. The Constitutional Court had given Parliament the task of drafting this Bill, and he hoped that other speakers would make constructive proposals to help Parliament improve it. Of course, if they felt that the Bill could not be improved, they were entitled to reject it in its entirety – though he was concerned when Mr Acton spoke about “militantly” opposing the legislation. In any case, this did not change the fact that Parliament had to and would enact some such legislation.

Adv Swart said that he appreciated Mr Acton’s concern with the right to privacy, but he thought that Mr Acton accepted certain parts of the Constitutional Court judgement while rejecting or ignoring others. Mr Acton had not dealt at all with the harms caused by cannabis or tetrahydrocannabinol (THC) use. The national Department of Health (NDOH) had discussed these harms in a recent Committee meeting, reporting that adolescents who regularly smoked cannabis faced psychosocial and developmental risks. Did Mr Acton share NDOH’s concern?

Mr Acton replied that the claim that cannabis caused developmental problems was not substantiated. Such claims did not take into account all the economic issues that contributed to developmental problems among adolescents, such as nutrition, poor housing conditions, unemployment, and a lack of economic opportunity. Until those economic issues had been addressed in South Africa, THC should not be “blamed” for developmental problems. THC was a cannabinoid which was extremely beneficial in treating multiple ailments, and which had been extremely beneficial in treating the stress that the Bill had caused him personally.

Adv Swart noted that Mr Acton opposed the Bill’s prohibition on driving a vehicle while under the influence of THC. Could he justify this? Why should drivers not be tested for THC levels in the same way that they were tested for blood alcohol levels, given that driving under the influence of cannabis could present a harm to other road users?

Mr Acton replied that no tests had ever been used to monitor the THC levels of drivers, because cannabis use had been entirely illegal since 1923. There was no evidence that cannabis use undermined road safety, and existing laws already provided for people to be prosecuted if they drove recklessly or negligently for any reason. To test drivers for THC would require imposing an arbitrary threshold for acceptable THC levels. It would also presume the guilt of cannabis users, effectively assuming that cannabis use would lead to them causing harm. Currently, if he made a mistake while driving, that was punishable under existing legislation. If cannabis had been a contributing factor to the mistake, that could be considered by the court, but only after he had made the mistake and been charged and arrested. He rejected testing for cannabis use insofar as it was proposed as a preventative measure, and held that it would violate people’s privacy by making their “inner cannabis state” subject to government regulation. 

The Chairperson thanked Mr Acton and said that his views would be taken into account during the Committee’s clause-by-clause deliberations.

The Chairperson asked which government departments were present in the meeting. He had noticed representatives from the Department of Trade, Industry and Competition (DTIC) and the Department of Small Business Development (DSBD). Were NDOH and the Department of Agriculture, Land Reform and Rural Development (DALRRD) present?

The Committee secretary said that the Eastern Cape Department of Rural Development and Agrarian Reform (DRDAR) was present.

Since he received no response from NDOH or DALRRD officials, the Chairperson assumed that those departments were not present. He asked the Committee secretary to ensure that they sent representatives to the next day’s hearings.

Oral submission: Cannabis Development Council (CDCSA)

Mr Ras Garreth Prince, Chairperson, CDCSA, made a submission on behalf of the CDCSA. He said that he was also a Rastafari and a member of the indigenous first-nation community of South Africa, and noted that it was African Traditional Medicine Day, an auspicious day to begin the hearings on the Bill.

Procedural defects

In discussing the procedural defects of the Bill, Mr Prince argued that:
- The Bill was incorrectly tagged as a Section 75 bill, when in fact it would have an impact on exclusive provincial competencies and on indigenous laws and customs; and
- The Bill had not been subject to sufficient public participation.

Mr Prince said that the CDCSA had been “given the cold shoulder” by the executive, when it and the broader cannabis community had sought to participate in the drafting process.

Substantive and constitutional defects

The CDCSA held that the current Bill:
- Was fragmented, narrow, and inappropriately minimalistic;
- Relied on racist, outdated, and unscientific arguments about cannabis; and
- Undermined the rights to equality, dignity, freedom, and privacy, by proposing to regulate cannabis through the criminal penal code. 

Mr Prince also pointed out that because the Bill prohibited trade in recreational cannabis products, it excluded those who lacked access to private land for cultivation, and would not formalise the existing illicit market – which could have significant implications for tax revenue.

Proposed alternative

Mr Prince said that the CDCSA proposed a single holistic cannabis bill, which should promote and regulate the use of cannabis for a variety of private, commercial, and medicinal uses. This bill would have a developmental orientation and it would be centred on harm reduction, rather than harm prevention.

The CDCSA’s proposed regulatory framework would:
- Remove cannabis from the schedules to the Drugs and Drug Trafficking Act and the Medicines and Related Substances Act;
- Classify cannabis as an agricultural commodity, not requiring special permits and regulated at the point of processing;
- Abandon arbitrary THC thresholds used to distinguish hemp from cannabis; and
- Subject only pharmaceutical-grade medical cannabis to regulation by the South African Health Products Regulatory Authority (SAHPRA).

CDCSA believed that South Africa’s cannabis policy should “use what we have” – specifically, indigenous landrace cannabis genetics – and capitalise on South Africa’s corresponding competitive advantages. The Cannabis for Private Purposes Bill condemned South Africa to be “followers” and “imitators,” rather than world leaders, in the cannabis sector.

 

(See Presentation)

Discussion

Dr Newhoudt-Druchen asked Mr Prince to clarify what “cannabis genetics” meant.

Mr Prince replied that the current cannabis policy had galvanised a discussion around how to distinguish among different cannabinoids. CDCSA’s position, however, was that any such distinctions – and especially the distinctions advocated by NDOH and DALRRD – were “irrational.” A holistic approach to cannabis was needed. The proposed THC and cannabidiol (CBD) thresholds were irrational, unrealistic, and unnecessary.

Moreover, Mr Prince said that the thresholds required producers to import hemp. Currently, the threshold was 0.2% THC – any variety of cannabis with a lower THC content was considered hemp, and any variety with a higher THC content was considered dagga. This meant that anybody who wanted to work with hemp had to import hemp seeds into South Africa. Two cultivars had been developed in South Africa, though the plants had not been subject to environmental impact assessment studies. Yet it was “totally unnecessary” to import hemp into South Africa – there were indigenous varieties of cannabis with medicinal, industrial, and recreational applications. Importing hemp conveyed the presumption that European hemp was better than South African plants. This was “apartheid 2.0” – under apartheid, it had been said that brown and black people were inferior, would never meet European standards, and had to view life according to the standards of white people. South Africa could certainly accomplish everything it needed to accomplish using the indigenous cannabis varieties that it already had.  

Dr Newhoudt-Druchen said that she also had two questions for the government departments involved in the Bill, but she was not sure whether it would be appropriate to ask them.

The Chairperson replied that it would be appropriate, because it would allow the departments to prepare to address her questions when they responded to the submissions.

Dr Newhoudt-Druchen wanted the departments to respond to two points raised by Mr Prince. Firstly, why had they tagged the Bill as a Section 75 bill, rather than a Section 76 bill? And, secondly, was it true that the departments had not held public consultations with the cannabis community before drafting the Bill?

The Chairperson said that the departments could be expected to address both of Dr Newhoudt-Druchen’s concerns in their responses, since both points were also raised in the CDCSA’s submission.

Mr Dyantyi welcomed the comprehensive presentation. He had also watched Mr Prince speak more harshly about the Bill on television the night before. He asked what the CDCSA proposed as the way forward, given that it found the current Bill fragmented, narrow, and seriously flawed. Mr Prince had mentioned a single holistic cannabis bill, which should be inclusive and address all the various issues he had raised, such as economic issues and regulation of the existing illicit industry. Was the CDCSA’s suggestion therefore that Parliament should not “waste our time” with the current Bill, but should instead “go back to the drawing board”?

Mr Prince replied that in their current forms, neither the Bill nor the National Cannabis Master Plan would pass constitutional muster. Any attempt to push the Bill through would end in a court challenge. Therefore, for all intents and purposes, Parliament did need to return to the drawing board. However, the task was not that momentous. There was a simple solution, though government seemed reluctant to embrace it. The solution was to remove cannabis from the schedules to the Drugs and Medicines Acts, and to make DSI and DALRRD the lead departments in regulating cannabis.

Mr Prince said that the CDCSA did not oppose the regulation of cannabis. Many of the proposed regulations and limitations were “completely unacceptable,” but the community would be prepared to accept regulation of the kind imposed upon the tobacco and alcohol industries. In this regard, he disagreed with Mr Acton. Some cannabis products could be incapacitating, so he would not be opposed to facing cannabis testing when he drove through a roadblock. Although CDCSA held that cannabis merited less strict regulation than tobacco and alcohol, the central point was that cannabis should not be regulated more strictly than those substances.  

Mr Prince said that one area in which cannabis merited less strict regulation was around the exposure and access of children to cannabis. In South African custom, cannabis was “a family affair.” And exposure to cannabis was certainly not the same – nor as harmful – as secondary tobacco smoking. His own 16-year-old daughter had been exposed to cannabis every day of her life, but was a top student and had never had any medical problems. In that regard, NDOH’s concerns – as raised in a recent Committee meeting – had no basis in science, in fact, or in the customs of the South African people.

Adv Swart said that he was particularly impressed with the CDCSA’s point about the tagging of the Bill. He agreed with Dr Newhoudt-Druchen that this was a very important issue that the Committee would have to look at and that the Department of Justice and Constitutional Development (DOJCD) would have to respond on. The tagging of a bill determined the nature of the public participation required. In that regard, he was sure that Mr Prince was aware of the judgements in Doctors for Life v Speaker and Matatiele Municipality v President .

Mr Prince agreed that the tagging issue was concerning, and that DOJCD had to explain its decision to tag the Bill as a Section 75 bill.

Adv Swart was also impressed with the CDCSA’s points about medicinal cannabis and its use in traditional medicines. He asked for the CDCSA’s input on a report the Committee had received from DALRRD in a recent meeting. DALRRD had said that indigenous methods, and specifically medicinal cannabis, could possibly be used to treat COVID-19.

Mr Prince replied that the COVID-19 pandemic was a crisis, and that South Africa should not limit itself in trying to develop responses to that crisis. There had been reports that CBD might help in treating COVID-19. Yet there had to be more research and development, particularly around the potential uses of indigenous landrace cannabis. Current legislation created a “bottleneck” which limited such research and development. The present regulatory regime therefore did not allow the country to adequately respond to the challenge of COVID-19.

Mr Prince said that there had recently been a high court decision which said that the definition of “medicines” had to be narrowly interpreted. Cannabis was an indigenous health product. It did not necessarily have to be designated as a medicine and thus subjected to the strict regulatory regime that was automatically applicable to all medicines. It was understandable that such a strict regime was required to regulate allopathic medicines, the vast majority of which were highly toxic – but there were no such concerns about cannabis.

Mr Prince also disputed NDOH’s claims about the health risks of cannabis, as presented to the Committee in a previous meeting. He had started using cannabis when he was 16, and at the age of 26 had been a virgin with three legal qualifications, on the brink of earning his Master’s degree in law. Claims that cannabis stunted development and caused psychosocial problems were not borne out in the experience of millions of cannabis users across the country. NDOH was rehearsing “racist, outdated propaganda,” which was used to create an irrational fear of cannabis.

The Chairperson thanked Mr Prince. DTIC was also present and would have heard the CDCSA’s submission, which he thought could also help to improve the Cannabis Master Plan. It was also important for NDOH to attend so that it could later respond to some of the medical points that had been raised. 

Oral submission: Congress of South African Trade Unions (COSATU)

Mr Tony Ehrenreich, Deputy Parliamentary Coordinator, COSATU, said that COSATU welcomed the Bill and its progressive objectives. It also welcomed the Cannabis Master Plan, although it was concerned that many stakeholders in the sector had not been consulted.

However, COSATU agreed with other submissions that the current Bill represented a “missed opportunity” to comprehensively address the challenges and opportunities presented by cannabis, outside of the narrow imperatives imposed by the Constitutional Court judgement. 

COSATU proposed that the Bill should be strengthened by the additions of provisions which would:
- Rescind the criminal records of persons previously charged for possessing small amounts of cannabis;
- Expand the scope of the Bill to all aspects of the cannabis industry;
- In particular, expand the Bill to regulate the sale of dagga, especially to reduce the power of criminal networks and gangs; and
- Explicitly protect the rights of small growers, and help them to move up the value chain.

On the last point, Mr Ehrenreich said that COSATU worried that present proposals left small growers vulnerable to prohibitive entry requirements and to domination by large pharmaceutical companies. Experiences in the mining sector should serve as a warning in this regard.

COSATU also encouraged greater intergovernmental cooperation, on the basis that, thus far, certain government departments had been an “impediment to progress” on cannabis policy.

 

(See Presentation)

Discussion

The Chairperson said that Mr Ehrenreich’s submission illustrated why the Committee had insisted on receiving briefings on the Cannabis Master Plan before processing the Bill – Members had had to understand government’s broader plans for the cannabis sector. He agreed that government urgently had to intensify its consultation with communities on the Master Plan. 

A member of the public had raised his hand to speak, and the Chairperson reminded observers that only Committee Members could ask questions.

Adv Swart noted that COSATU welcomed the Bill, but also identified certain problems with it. Did COSATU want to propose further amendments to improve the Bill? Or was its position that the current, narrow Bill should be rejected entirely, and replaced by a more comprehensive bill? He expected that COSATU would want to participate in the Cannabis Master Plan process at the National Economic Development and Labour Council (Nedlac), in order to raise certain policy considerations. At the same time, this was an opportunity for Parliament to consider broadening the ambit of the Bill itself.

Mr Ehrenreich replied that Parliament was confronted with two things. First, there was the challenge of meeting the deadline for making the changes required by the Constitutional Court. The Constitutional Court had been concerned with the narrow issue of private cannabis use, and the Bill thus responded to the same narrow issue. But, second, the Bill and the Master Plan more broadly had stimulated a much deeper societal discussion about how the country should approach the cannabis issue as a whole. In that discussion, there was an impetus – on the part of both government and the public – towards a more comprehensive cannabis policy. The challenge and the obligation of the legislature was to deal with both of these interrelated imperatives. COSATU welcomed the Constitutional Court finding and supported the government’s actions to give effect to that finding – it hoped that process would be finalised as soon as possible. However, COSATU did not want the current Bill to be detached from the imperative to effect broader policy reform. An effectively managed holistic cannabis policy would probably have much more far-reaching effects – for example, in terms of economic opportunities – than the mere decriminalisation of private cannabis use. A broader policy also had to be pursued urgently. There were certainly ways for the legislature to fast-track legislation – that had been seen with the Soccer World Cup regulations and more recently with the disaster management regulations. It was about political will, about reaching a societal consensus, and about using the most appropriate methods available.

On consultation processes, Mr Ehrenreich said that further engagement was needed on the details of the Master Plan. While the Master Plan had been presented at Nedlac, the method of presentation had been somewhat inappropriate – the Master Plan had not been taken through the specific Nedlac forum and processes which were designated for master plans and which government should have been aware of. In any case, COSATU appreciated that it had been made aware of the Master Plan. Yet, properly, the Master Plan and legislation should be consulted on and finalised outside of that Nedlac process.

Adv Swart said that the cannabis regulations had to be looked at carefully. One of the regulations he was concerned about was the DALRRD definition of “hemp,” which set out the 0.2% THC threshold and which seemed very restrictive. Would COSATU be looking at that?

Mr Ehrenreich replied that the details of the threshold would have to be looked at during consultations on the Master Plan. It was “ridiculous” that a miniscule change in a numerical threshold could determine whether compliance required South Africans to import seeds. The regulations had to be examined on the basis of scientific evidence, and the ultimate decision should be based on a societal consensus. However, government had to move quickly, given the many economic opportunities in the hemp industry.
 

Adv Swart said that Mr Ehrenreich’s submission had made a good point about the need to educate the public about the dangers of cannabis abuse. Could he elaborate on that? He appreciated that the Committee was hearing from many members of the cannabis community, but the Committee also had to consider the communities who were concerned about the abuse of cannabis, and especially about the use of cannabis in conjunction with other drugs. Education was important if these issues – including putative substance abuse problems – were to be addressed from the perspective of social development, rather than from the perspective of criminal justice.

Mr Ehrenreich replied that one had to remain mindful of the risk of narcotics abuse, and agreed that more had to be done through education to minimise such abuse. It was not just cannabis use – alcohol abuse and other illicit drugs were having devastating effects on South African society. As a society, South Africa had to find a way of responding more effectively to substance abuse, through education and other means.

Mr Dyantyi said that his input would be brief. The Committee had to listen but, most importantly, it later had to act in a way that demonstrated that it had listened. Mr Ehrenreich had said that COSATU wanted to see the Bill finalised quickly, and he wanted to clarify whether this meant that COSATU wanted to see the Bill processed in its current form. To pass this Bill and then start working on the Master Plan was one approach. A very different approach was proposed by CDCSA, which had made a strong argument that the current Bill was “problematic” and should be replaced entirely by a broader and more holistic cannabis bill. This was a question that he was grappling with – in tackling the cannabis issue, where should Parliament start? 

Mr Ehrenreich replied that COSATU did support the speedy passage of the Bill, given the obligation imposed on Parliament by the Constitutional Court judgement. However, COSATU believed that it was most essential to develop a comprehensive cannabis policy, covering aspects beyond private cannabis use. That had to be the ambit of the discussions about the Cannabis Master Plan. If certain elements had to be fast-tracked – perhaps because of regulatory obligations, or obligations imposed by the courts – then that could be handled in consultation with the legislature. COSATU had a strong preference for a comprehensive cannabis policy. 

Dr Newhoudt-Druchen said that she preferred COSATU’s oral submission to its written submission. The written submission mentioned two clauses – clause 1(1)(h) and clause 5(a)-(d) – which did not appear at all in the current Bill. She therefore wanted to clarify whether COSATU was satisfied with the Bill in its current form, without those two clauses.

Mr Ehrenreich replied that he would have to get back to Dr Newhoudt-Druchen later about the specific clauses that she had cited. However, although COSATU’s oral submission might not have outlined its views on specific clauses of the Bill, he wanted to emphasise that COSATU had a strong preference for a comprehensive cannabis policy – which the Cannabis Master Plan would hopefully provide. As he had said, there were two dynamic processes: on the one hand, the Constitutional Court decision and the process of drafting the current Bill to give effect to it; and, on the other hand, a broader approach to cannabis, being pursued through the drafting of the Master Plan. Those two processes had interacted with and responded to each other. It was important to recognise the resulting tensions, but COSATU thought that those tensions were certainly manageable.

Ms Newhoudt-Druchen said that the Bill decriminalised private cannabis use – the use of cannabis by individuals at home. However, one issue that nobody mentioned – not even DOJCD – was that high school students themselves sold cannabis at school. The children might say that this was cannabis for their own private use, but they did bring it onto school property, and schools were able to conduct drug tests and bring in the police and sniffer dogs to look for narcotics. Whatever bill was ultimately passed, what should happen in schools? What should the school governing bodies do, for example?

Mr Ehrenreich replied that COSATU was concerned about practices at schools. Again, part of the response had to involve expanding education programmes, and generally engaging learners more effectively. Children might take cannabis to get high, but the same problems also existed in schools around alcohol and certain medicines. Society had to be educated, and the important issues – such as education, facilities, safety, and value systems – had to be tackled. The current problem had arisen partly due to the “horrendous prejudice” against cannabis, which had pushed cannabis to “the outskirts of society.” Yet cannabis clearly should not be on the outskirts of society – it had important medicinal and other benefits to its users, and medicinal access to cannabis should be expanded. However, that had to be accompanied by education to undo the prejudices of the past and instil a different perspective. There were promising international examples. Portugal and some parts of Britain had had success using different approaches to substance abuse and addiction, including abuse of alcohol and other drugs like heroin and cocaine. Clearly, any kind of addiction – like alcoholism – was a disease, and all such afflictions had to be treated consistently. It did raise the question of whether the problems had arisen because big industries dominated the relevant sectors of the economy, such as the alcohol industry. In sum, the country had to develop a new approach, and that had to be part of a comprehensive cannabis policy. 

The Committee adjourned for a short tea break.

Oral submission: Eastern Cape provincial government

Dr Mfundo Maqubela, Acting Chief Director: Research and Technology Development, Eastern Cape DRDAR, made a submission on behalf of the Eastern Cape provincial department, reporting on input made by members of the public in the Eastern Cape. This input had been solicited during four sessions in November 2020.

Objections to the Bill

Dr Maqubela reported that the public had made the following procedural comments on the Bill:
- The Bill had been formulated without public participation;
- There had been a lack of consultation with the traditional leadership, within whose ambit most existing cannabis cultivation took place;
- The Bill could affect customary and indigenous law and, in its current form, could undermine economic and customary rights; and
- Holistic legislation would be preferable to the “piecemeal approach” of the current Bill.

Dr Maqubela noted that the last point answered the question that Mr Dyantyi had posed to COSATU, about whether the current Bill should be abandoned in favour of more comprehensive legislation.

On substantive matters, the public had commented that the Bill:
- Effectively criminalised cannabis, and would have high enforcement costs;
- Was not aligned to the Drug Master Plan, which disowned a punitive approach;
- Was unconstitutional, because it effectively prohibited access to cannabis for any person who did not have private land for cultivation;
- Failed to make provision for people to access cannabis seeds for cultivation;
- Unduly limited the quantities permitted for cultivation and possession, thus effectively criminalising the traditional, religious, and ritual use of cannabis (which required large quantities); and
- Wrongly prohibited the participation of children, who were trained by their communities to help in the production of cannabis.

Proposed amendments

Dr Maqubela said that members of the public had proposed that the Bill should additionally:
- Protect intellectual property and plant breeders’ rights, especially in relation to indigenous landrace cannabis genetics;
- Help develop local markets for commercial cannabis; and
- Provide for the immediate expungement of all criminal records resulting from cannabis offences, and for the immediate release of all prisoners being held on cannabis charges.

Dr Maqubela said that the communities supported the Bill, apart from the concerns listed above.

 

(See Presentation)

Discussion

Mr Nqola noted that Dr Maqubela had mentioned the importance of commercialising, rather than criminalising, cannabis. The Cannabis Master Plan proposed regulating the sector, and preventing illegal activity, by issuing permits and licenses. How did the people of the Eastern Cape respond to this proposal? Did they think that permits would impose additional restrictions on their capacity to trade in cannabis? Or did they view the permits as creating new opportunities in the sector by restricting illicit trading?

Dr Maqubela replied that the people of the Eastern Cape fully supported the hemp permits. The permits were seen precisely as an opportunity to regulate the cannabis sector and create licit markets. However, people requested that the permits should be affordable and easily accessible. They had suggested that it might be cheaper and easier for hemp permits to be administered provincially. Dagga licenses could still be managed nationally by SAHPRA.

Mr Nqola said that the Bill might be finalised around December. He acknowledged the demand to release prisoners serving time for cannabis-related offences and to expunge cannabis offences from criminal records. This would imply that the Bill, once enacted, should have retrospective application. Yet were people in the Eastern Cape aware that the principle of retrospective application could actually work against their objective in this regard – that is, work against releasing current prisoners and expunging their records? He wanted to make that point clear, so that South Africans understood how such legislation worked. However, the Committee had noted the input and would take it into account.

Dr Maqubela replied that the Eastern Cape government would convey Mr Nqola’s advice. Personally, he was not familiar with the relevant legal processes, but others might be, and the public could always be given the appropriate information.  

Dr Newhoudt-Druchen noted that DRDAR’s written submission said that the commercialisation of cannabis had been, and remained, restricted by a lack of enabling legislation. She wanted to know what the people of the Eastern Cape hoped to see happen in the parliamentary process for this Bill. Did they want a complete overhaul of the Bill to incorporate all their comments, especially those about commercialisation?

Dr Maqubela replied that, in this process, the Eastern Cape government was acting as a facilitator, ensuring that the public provided input on the Bill before the consultation period ended. His submission had presented what members of the public had said, although he had tried to summarise their comments. The written submission was also available for Members’ reference.

Adv Swart said that he did not necessarily think it was correct to ask the Eastern Cape government what the people of the Eastern Cape wanted. He appreciated the government’s role as the elected representatives of those people, and he appreciated that the government had held discussions with representative groupings. However, he thought that the Committee needed to hear directly from members of the public in the Eastern Cape.

Adv Swart said that he would also like direct input from the Eastern Cape government on the Bill. Its submission had focused on the views of the public, but the Committee also needed to engage with government itself at the provincial level. He therefore had two questions for the Eastern Cape government, although he would accept written responses.

Firstly, AdvSwart assumed that the government would like to see the Bill tagged as a Section 76 bill, since, as Mr Prince had pointed out, it had an impact on the provinces. Was that correct? Secondly, Mr Swart asked for input from the Eastern Cape government on potential corruption in the issuing of licenses and permits. He had raised this possibility with DALRRD in a recent meeting. What steps would the Eastern Cape government take to prevent abuses in licensing, and to ensure that politically affiliated people were not unfairly advantaged in that process? What checks and balances would be instituted? These were real challenges – everybody knew of corruption issues – and he thought it was important for the Committee to consider them, especially since Dr Maqubela had raised the possibility of granting hemp permits at the provincial level.

Dr Maqubela confirmed that the hemp permits could be managed at the provincial level. They would also probably be cheaper – right now they cost around R900, and they would probably cost less than that. He had never heard anything about corruption in the issuing of hemp or dagga permits and licenses, maybe because those processes were currently located at the national level. The province had administered the permits between 1999 and 2005, until, at the end of the research trials, responsibility had been handed back to SAHPRA. There were control measures in place. The provincial government would ensure that there was no corruption, starting from the provincial executive and moving downwards to individual departments and officials. There was a “huge drive” to prevent corruption in the Eastern Cape, and he assured Members that corruption would not be a problem.

The Chairperson suggested that corruption was a broader issue than just unfair advantages given to politicians. There was also the threat of corruption in the private sector, and especially of monopolisation by big industries.

Dr Maqubela agreed.

Mr Dyantyi said that DRDAR’s submission had been helpful. He appreciated that DRDAR had taken the trouble to interact with communities in the Eastern Cape, and he hoped that other government entities would do the same. When processing the gender-based violence bills, the Committee had been greatly assisted by a submission from the Western Cape Department of Community Safety. So, to Mr Swart’s point, he said that it was not a new innovation for a provincial department to report on the views of the public – the Committee had drawn on such reports very recently.

Mr Dyantyi asked where the Eastern Cape government stood on the Bill. Given the issues raised in the submission, such as concerns about the Bill’s constitutionality, did the Eastern Cape suggest that the Committee should proceed with the Bill in its current form, or did it suggest that a different approach should be taken? He was consistently asking this question of the speakers, because he did not want for the public submissions to raise important issues but leave him unsure of their ultimate position. Was the Eastern Cape government in support of the Bill, and what was the recommended way forward? If the Committee held further public hearings in the provinces, it would simply “piggyback” on the work of the Eastern Cape provincial government. It did not want to “reinvent the wheel” in that way, so it was simpler just to confirm where the Eastern Cape stood.

Dr Maqubela replied that the Eastern Cape government approved of the Bill, especially since the Cannabis Master Plan was being developed alongside it, and held that DOJCD should continue with the legislation. However, the government also felt that the process should take into consideration the issues raised by members of the public, such as those relating to traditional use, medicinal use, and the protection of genetic material. Those appeared to be minor issues, but they had a tremendous impact on the people who had raised them.

A member of the public introduced himself and began to speak, but the Chairperson again reminded observers that the public hearings were an engagement between the Committee and those who had asked to make submissions.

The Chairperson thanked the Eastern Cape government for making the effort to consult with the public and to coordinate and express their views. This was a very “progressive” approach. It should be encouraged, especially when the relevant legislation directly affected the people, because not everybody had the resources to participate directly in the Committee’s processes.

Oral submission: Centre for Child Law

Adv Morgan Courtenay made a submission on behalf of the Centre for Child Law (CCL). The CCL broadly supported the Bill, but held that it was not workable in its current form, at least insofar as it failed to sufficiently protect children. 

The CCL was concerned that the Bill failed to address the plight of children who found themselves in a cycle of drug abuse, and who might contravene the provisions of the Bill. This was a concern especially insofar as the Bill criminalised cannabis in respect of children. To this extent, the Bill was inconsistent with the Constitution and with existing legislation, as implied in S v LM, a case currently awaiting confirmation by the Constitutional Court.

Definitions and cultivation, cannabis, and consumption offences

Adv Courtenay said that the CCL suggested replacing the term “guardian” with “appropriate person,” as defined in the Child Justice Act.

The CCL also took issue with the Bill’s cultivation offences (clause 3), cannabis offences (clause 4), and consumption offences (clause 5), insofar as these applied to “any person” and thus to children.

The CCL recommended that:
- The Bill should make special provision for children accused of the offences; and
- Children should not be prosecuted of consumption offences, but referred to the care and protection system or to a treatment centre.

Offences involving children

CCL lauded the objectives of clause 6 of the Bill, which sought to protect children from exposure to cannabis. However, CCL remained concerned about:
- The use of the term “guardian,” as mentioned above;
- The exception provided for by subclause 6(b), which contradicted clause 3(2)(a); and
- The absence of provisions seeking to properly assist children and capacitate parents, beyond merely criminalising the relevant “guardian.”
 

(See Presentation)
 

Discussion

Adv Swart said that he welcomed the submission and particularly the proposed improvements to the Bill. It was particularly helpful to consider S v LM. He remembered that Parliament had tried to deal with “sexual promiscuity” among adolescents through the Criminal Law (Sexual Offences and Related Matters) Amendment Act. That had been “possibly not the correct approach,” and the attempt had been struck down by the Constitutional Court in Teddy Bear Clinic v Minister of Justice. The Committee could learn a lot from that matter. It implied that, as the CCL proposed, substance abuse or cannabis use among adolescents should not be approached from a criminal justice perspective. Instead, it should be approached from a social perspective, with government looking at other methods of dealing with the issue.

Adv Swart said that he had read S v LM and seemed to remember that, because the high court had ruled against all criminalisation, restorative justice provisions also would not be applicable. What was the CCL’s view about that? He thought that the CCL might endorse some kind of restorative justice approach in respect of children and adolescents – especially given that when families were concerned about substance abuse by their children, they might try to address that concern through the criminal justice system, rather than through social welfare interventions. He also thought that Ms Newhoudt-Druchen would agree that this was a possible approach, given her background in social work and her experience in communities. The idea would be to try to find the best approach for the children involved.

Adv Courtenay replied that S v LM tried to distinguish between two kinds of cases. On the one hand, a restorative justice approach might prove useful in cases where children were convicted of – or at least charged with – some of the more serious offences outlined in the Bill, such as drug dealing. As its submission showed, the CCL was not saying that government should simply do nothing with children charged with drug offences. On the other hand, in the case of “substance abuse proper” – where children were “in the grips” of some form of addiction or substance abuse – a criminal justice approach could never be appropriate. So a restorative justice approach would not be applicable in those instances. A social response to the problem was most appropriate when a child was found in possession of small quantities of a drug, evidently for his own use and possibly because he had an addiction. To address such a problem through the criminal justice system would be “like taking a sledgehammer to a nut.” S v LM demonstrated this. S v LM centred on four children who had effectively been incarcerated, for eight or nine months, for incredibly petty drug offences. He accepted that the prosecutors had genuinely been trying to act in the children’s best interests, but children only had so many years to be children and to develop. It was severely disruptive to a child to be kept in a facility that had effectively been designed to house children who had committed very serious offences.

Oral submission: Schindlers Attorneys

Mr Paul-Michael Keichel, partner, Schindlers Attorneys, and Mr Andrew Lawrie, associate attorney, Schindlers Attorneys, made a submission on behalf of their firm, which Mr Keichel said had supported efforts to legalise cannabis since 2013.

Constitutionality of the Bill

Mr Keichel said that the central problem with the Bill was that it was premised on “a system of criminal prohibition” which, in the context of drugs, was illegitimate. The Drug Master Plan acknowledged that the “war on drugs” had failed entirely and that even problem drug use was a public health concern, not a criminal justice concern.

The Bill was incompatible with Section 36 of the Constitution, which concerned justifiable limitations on rights. If it was possible to effectively regulate cannabis without criminal prohibitions – as Mr Lawrie would argue that it was – then it was irrational for the government not to pursue that less invasive route. Such a route was, in the words of Section 36(1)(e), a “less restrictive means to achieve the purpose.”

The Bill constituted “literally an assault” on citizens. It failed to consider the harms of “dragging” an individual through the criminal justice system, and failed to consider that those harms were disproportionate to any cannabis-related harms that might thereby be prevented.

Mr Keichel said that the issue went beyond the Cannabis Master Plan – which, he added, did not align with the Bill – and even went beyond any broad cannabis act. In fact, the solution was a complete review and overhaul of existing drug legislation, on the basis that science had overtaken the anti-drug “propaganda” that had informed that legislation. The Drugs Act should be revised in toto, along with relevant provisions of the Medicines Act.

Alternative proposal for the Bill

Mr Lawrie acknowledged that the Constitutional Court judgement required Parliament to pass only narrow legislation, but said that the Bill presented a significant opportunity that should be seized.

The current Bill was “primarily concerned with punishing people,” through its complex set of limitations on the quantities of cannabis that people could cultivate and possess. No such limitations would ever be rational and defendable, and their constitutionality would certainly be challenged. Moreover, the specific limitations in the current Bill were unrealistically low – many people, especially in disadvantaged communities, already grew and shared amounts of cannabis that vastly exceeded the thresholds. The limitations would also place a considerable burden on the police and on the judicial system.

Mr Lawrie proposed an alternative regulatory approach, which he said could empower people on an unprecedented scale. The Bill should regulate the uses of cannabis, rather than its cultivation and possession. Regulation could proceed in two stages. Legislators should first focus on setting growing, reporting, and inspecting standards for the sale of cannabis by rural communities. These should ensure the quality, safety, and efficacy of the final product, without imposing overly demanding barriers to entry. Thereafter legislators could progress to setting stricter standards for non-rural commercial trade in cannabis.

Legislation of this kind would protect the end-user of cannabis products, and would be much simpler to draft and to enforce. On drafting, he pointed out that the regulations would not need to be devised from scratch – all that was required was a controlled relaxation, or “reverse-engineering,” of existing medical standards.

 

(See Presentation)

Discussion

Mr Nqola said that he appreciated the public submissions, which would help Parliament to enact laws that represented the interests of the people. DRDAR’s submission had reported that, during public consultations, members of the public had suggested that the Bill should involve retrospective application, such that it would effect the release of people who had previously been charged with cannabis offences. What was Schindlers Attorneys’s legal opinion on such a provision?  

Mr Keichel said that Schindlers Attorneys had not done any respectable statistical data-gathering or analysis, so he could not say that his view would necessarily represent “the will of the people.” The Committee would have to listen to all the submissions and discern the will of the people from the commonalities among those submissions – and, thus far, the submissions had differed in very few respects. However, he fully endorsed retrospective expungement of criminal records. He thought such a measure did represent the will of the people, and he did not think that the Committee would hear any submissions opposing such a measure.

Mr Keichel said that the criminal records issue tied in closely with the notion of restorative justice, as raised by Mr Swart earlier. SAHPRA had established a set of guidelines, and one of those guidelines said that SAHPRA could not issue a medical cannabis license, in terms of the Medicines Act, to any organisation whose senior team included someone who had a criminal record. The guidelines therefore excluded anybody who had been caught growing or consuming cannabis over the past ten years – which was ironic, because such people might be very good at growing cannabis.

Mr Lawrie added that if retrospective application was provided for in respect of cannabis offences, it would not make sense for the Bill to double or triple the sentences applicable for those same offences. The current Bill prescribed a 15-year sentence for giving four cannabis plants to a friend – giving, that is, freely, without remuneration. With such severe sentences, some cannabis offenders might prefer to stay in prison under their existing sentences.

Closing

The Chairperson thanked all speakers and observers. The Committee would continue with public hearings on the Bill all day tomorrow. It was trying to ensure that it listened to everybody’s views as it processed this very complicated Bill.

The meeting was adjourned.
 
 

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