Cannabis for Private Purposes Bill: response to public submissions

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Justice and Correctional Services

23 November 2021
Chairperson: Mr G Magwanishe (ANC)
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Meeting Summary


In this virtual meeting, the Committee met with the Department of Justice and Constitutional Development to receive its response following a series of public hearings held over three days on the Cannabis for Private Purposes Bill.

The Department of Justice and Constitutional Development presented the summary of comments from the 32 public submissions and the Department’s responses to them. A number of key highlights were noted, including the decriminalisation of cannabis use, that it would be inappropriate to incarcerate people for such use, particularly given the waste of State resources. The Department indicated that there were other government departments responsible for measures to address harms associated with cannabis use. Concern had been raised that allowing cannabis for private use would lead to an increase in cannabis use amongst teenagers, this was similarly a concern of the Department. The Department noted that it was beyond the scope of the Bill to enable exemptions for permits or licensing of cannabis cultivation amongst farmers. The concentration of THC was discussed, highlighting relevant legislation and regulations in other countries. Similarly, definitions of ‘cannabis’ were clarified, where hemp and cannabidiol were concerned. Emphasis was given on the need to protect children, given the long term effects of cannabis on brain development. Cultural and religious rights to cultivate were highlighted, particularly for the Rastafarian community. Issues around the regulation of cultivation of cannabis were highlighted as well as cultivation in informal settlements. Issues around the restriction of cannabis in public places was highlighted, this was in effect to prevent dealing of cannabis. Oral fluid drug screeners could be used to screen for use of cannabis in public spaces.

The Chairperson asked how the Bill would impact on efforts by other departments to promote legislation to enable commercialisation of cannabis as well as licensing for cultivation.

Clarity was requested about what cannabis products were allowed to be sold commercially.

The Chairperson asked if there was any foreign legislation guiding religious exemptions of cannabis cultivation. He suggested that the Rastafarian community needed to be further consulted on this.

Clarity was requested about the quantities of cannabis permitted to be cultivated per household versus per person in a household.

The Department did not complete its presentation and would continue the following day.

Meeting report

Opening Remarks
The Chairperson said the Committee would receive responses from the Department of Justice and Constitutional Development on the public submissions received on the Cannabis Bill. In the previous quarter, there were three days of public hearings on the Cannabis Bill, the Department would be responding to all the issues that were raised during that process. Thereafter clause by clause deliberations would take place.

Summary of Submissions and Response on the Cannabis for Private Purposes Bill
Adv Sarel Robbertse, State Law Advisor, Department of Justice & Constitutional Development, presented the summary of comments from the public hearings on the Cannabis for Private Purposes Bill and the Department’s responses to them. 32 Public inputs were received.

Highlights of General Comments and Clause 1(2) of the Bill
Decriminalisation of Cannabis Use

Public input was received to the effect that it was not appropriate to incarcerate persons for use of cannabis, particularly given the impact of a criminal record and the waste of State resources. The Department had agreed with this.

The Prevention of and Treatment for Substance Abuse Act, 2008 (Act No. 70 of 2008)
The Act provided appropriate measures to address the harms associated with cannabis use and involves various other role-players, including government departments responsible for social matters, finance, education and health. This was discussed in response to the suggested scope of the Bill, which was covered by the Prevention of and Treatment of Substance Abuse Act.

Increased Use of Cannabis                                   
It was suggested that allowing for cannabis for private use was likely to lead to increased use of cannabis amongst adolescents and others. The central concern was that this would impact negatively on brain development. The Department agreed that such legislation would lead to increased use of cannabis, due to the availability and greater exposure to cannabis.

Cannabis use for medical use only
Public input suggested that recreational use of cannabis should be limited. The Department’s response was that there was legislation in place, such as the Prevention of and Treatment for Substance Abuse Act, which aimed to achieve such objectives. The Bill would ensure that there were ‘justifiable limitations’ around the use of cannabis in South Africa and was limited to the rights that were afforded in the Prince v President of the Law Society of the Cape of Good Hope 2002 judgement.

(For full summary of submissions see attached document)

The Chairperson asked if the Bill ‘closed the door’ to other departments that were responsible for promoting legislation that would enable commercialisation of cannabis.

Adv Robbertse responded that clause 1.2 provided for that. Countries such as Uruguay, Canada and the United States of America (USA) commercialised cannabis. This was done in contravention of the obligations of the International Standards on Drug Use Prevention. Those countries were severely criticised for doing that, however no steps had been taken against those countries. There was an opening for other departments to ensure that legislation was promoted to deal with the recreational use of cannabis and the regulation of that in a commercialised manner. At this stage, South Africa’s international obligations, prevented cannabis from being something that could be done for profit. If other departments did implement it, it needed to be based on the principle that it was implemented as a harm reduction measure only.

The Chairperson stated that there was a mall located nearby, where there were cannabis products that were being sold. Would that not be in contravention of that United Nations (UN) Convention, and what had been the consequences of that?

Adv Robbertse stated that what Cannabidiol (CBD) products were allowed to be sold currently, which were extractions from cannabis. CBD was not a drug; it was used as a treatment. He could direct Members to the Medicines and Related Substances Act, amongst others where CBD was de-scheduled to a level 4 status. It could be used for medicinal purposes in schedule 6. CBD was excluded under certain circumstances and products were limited to containing a certain amount of CBD. On the other hand, Tetrahydrocannabinol (THC) was regulated by the Drugs and Drug Trafficking Act. If anyone sold cannabis or THC extraction, it would be in contravention of the Drugs and Drug Trafficking Act as well as the law.

Dr W Newhoudt-Druchen (ANC) asked that Adv Robbertse explain this further. Some shopping centres and nurseries, where plants were sold, sold these products. How were some products allowed and some not allowed?

Adv Robbertse explained that if anything contained THC, such as raw cannabis, which could be considered a psychotropic substance, it was prohibited. The only exemption was that if cannabis was for private use; if one cultivated cannabis it needed to be for private, personal use only. What was sold commercially were mostly products that contained CBD. CBD was not a psychotropic substance; it was mainly used for medicinal purposes. Where CBD exceeded a certain quantity, or percentage, it was regulated in terms of schedule 4 of the Medicines and Related Substances Act, which meant that a doctor needed to prescribe it. Where CBD was below the prescribed percentage, these products could be sold commercially. The Foodstuffs, Cosmetics and Disinfectants Act, which was passed by the Department of Health, imposed certain obligations and restrictions on the selling of certain products. If any product was sold that contained THC it was an offence.

The Chairperson asked how the Bill assisted the Minister of Agriculture, Rural Development and Land Reform. The Minister wanted to give licenses for cultivation. How would the Bill, if passed, assist in doing that?

Adv Robbertse responded that currently if one looked at the schedules to the Drugs and Drug Trafficking Act, dagga was prohibited. Dagga was any part of the plant, including hemp. If one considered the Bill and definitions specifically, hemp was excluded from cannabis regulation, which removed ‘cannabis’ from the Drugs and Drug Trafficking Act. The Bill would remove the restriction from the Drugs and Drug Trafficking Act and ‘hemp’ from the definition of ‘cannabis’ in terms of the prohibitions. There were certain restrictions on that. Legislation needed to be promoted by the Department. If one considered other countries, there was legislation in place that regulated the cultivation and subsequent processing of hemp. Hemp was treated differently in the Bill; it was excluded from the definition of ‘cannabis.’ If it was cultivated in line with other legislation or regulatory measures promoted by other departments, a limit needed to be placed on the level of THC that the plant could contain. Cultivation would be subject to any relevant legislation adopted to regulate it.

Highlights of General Comments and Clause 1(2) of the Bill Continued

Input suggested that the Bill would curb medicinal use of cannabis
The Bill could not regulate the medicinal use of cannabis, it was not the responsibility of the Department of Justice to do that. The Department of Health or the Minister of Health was the responsible person that needed to do it. The Medicines Act recently rescheduled cannabis from a schedule 7 to a schedule 6 substance. This meant that it could be used for medicinal purposes.

Commercialisation of cannabis
It was proposed that exemptions of permits or licensing be applied to redress previous discrimination against cultural, religious and linguistic communities. Public private partnerships were proposed as well as measures to include small scale farmers. The Department noted that this was not within the scope of the Bill.

Considerations of hemp
Public input put forward that hemp should not be described according to the European Union (EU) standard of 0.2 percent. The Bill provided that the legislation which will regulate the cultivation of hemp must prescribe the concentration of THC (definition of hemp). The percentage of THC that has been determined in the Bill varies from country to country and is directly related to a specific strain that is considered to be appropriate for the cultivation conditions of a country. Internationally 0.2 percent THC is regarded as the norm. Other countries prescribe the following levels of THC 0.2 percent in Austria; 0.3 percent in Czechia; 0.3 percent in Canada; 0.3 percent in USA and 1.0 percent in Switzerland.

Exclusion from cannabis sector
The current legal framework excludes a vast number of South Africans from the cannabis sector due to the very high level of investment needed to implement regulatory specifications. The Department noted that cannabis cultivation for medicinal purposes was strictly regulated and substantial capital was required to access the market.

Highlights of Definitions: Clause 1(1) of the Bill.

Definition of ‘cannabis’
The public input stated that despite the exclusion of “hemp” from the definition of “cannabis plant”, the definition for “cannabis”, refers to any substance which contains THC. Such substances can include beverages, food and medicinal products. The Department’s response was that the scope of products containing THC, in line with the current scheduling of cannabis in the Medicines Act and reference can be included to limit substances to 0.2 percent THC of less.

Definition of ‘cannabis concentrate’
It was suggested that clustering the different types of concentrates together showed a lack of understanding of the matter, in the Bill. This was dealt with in other legislation.

Definition of a ‘child’
The Bill does address the need to protect children (defined as persons under the age of 18) but does not refer specifically to adolescents and does not go far enough in protecting adolescents from access and exposure to cannabis. There was a growing concern regarding the long-term effects of regular cannabis use on adolescent brain development. Brain development continues until the age of 25, so this was also a concern for young people in emerging adulthood. The Department highlighted equivalent legislation in other countries, including Canada, where the age restriction was 18 years or older. The South African Liquor Act 59 of 2003 and Tobacco Products Control Act 83 of 1993 restricts such substances to persons above the age of 18 years.

Definition of ‘prescribed quantity’
The submission questioned the harms prevented by criminalising the behaviour of someone who cultivated or possessed more than the ‘prescribed quantity.’ The prescribed quantities are to restrict cannabis for private use. If there was no limitation on the prescribed quantities for personal use, it may be used as a facade to facilitate the dealing in cannabis. The prescribed quantities in Schedule 3 of the Bill are liberal, if compared with the limitations in foreign jurisdictions. Personal use was defined in section 1(1) of the Act as "for the exclusive use of an adult person". If cannabis was used for another purpose, other than consumption, it was still for the use of the adult and covered by the Bill.

Highlights of Prescribed Quantities for personal use by adult person clause 2 and schedule of the Bill

Time limit per exchange
Public input was made to the effect that there should be no restriction of sharing cannabis cultivation materials, cannabis plants or cannabis between adults as in clause 2(3)(a). The Department will further clarify this; it should be interpreted as a per occasion since it does not restrict it to a once-off exchange.

Highlights of Cultivation offences clause 3 and schedule 4 of the Bill

Cultural and religious rights to cultivate
The public input was to the effect that the Rastafari community should have the right to cultivate cannabis plants without restriction. The Drugs Act and the Medicines Act have always restricted the cultivation of cannabis plants. Although the religious use of cannabis by the Rastafari was acknowledged in the Prince 1 Judgment, the Court held that the prohibitions of the Drugs Act and Medicines Act are justifiable limitation thereon. The limited exemption that legalised the cultivation of cannabis plants for personal use cannot be regarded as allowing the Rastafari community to cultivate cannabis plants without any restriction. The Bill, which aims to give effect to the Prince Judgment regulates and imposes justifiable restrictions on the cultivation of cannabis plants.

(For full summary of submissions see attached documents)

The Chairperson asked if there was any foreign jurisdiction for guidance.

Adv Robbertse stated that there was the Jamaican legislation that provided religious exemption to Rastafarian communities for the cultivation of cannabis plants, the possession, use and transport of cannabis. There was foreign legislation in the USA, there was the Smith Judgement 2006 that provided for religious exemption for religious purposes. Jamaica had the only legislation, he had been unable to find other legislative precedent. South African legislation contained some exemptions on a religious basis, the first was for the use of fireworks, where the prohibition of the use of fireworks was lifted for religious purposes. This would need to be something that was crafted afresh. If this was allowed, the circumstances in which it could take place (where exemption would be allowed) should be strictly regulated. Specifically, around where the plan was cultivated, the harvesting, storing and use for religious purposes. If such a religious or cultural exemption was considered, it might be appropriate to consult with the various stakeholders that represent the Rastafarian communities to formalise and finalise such an exemption. The Department had considered such an exemption, there were certain short-comings in the proposals that were made.

The Chairperson asked if the Department would invite the Rastafarian community again to make a representation to the Department.

Adv Robbertse responded to stated that during the consideration of the Bill, certain stakeholders were invited to assist the Committee in finalising the legislation. This could be done through consultations with the Rastafarian community and the Department and formalising such legislation that would need to be sent out for comment and responses and the proposals could then be taken to Parliament along with the amendments. An amendment could be finalised from the Department’s side. The Committee could also accommodate the Rastafarian community to make additional proposals on this, which would then be considered by the Department.

The Chairperson suggested that the Committee have a brief discussion on that proposal. He asked if the Committee should take the view that the Department should be given time till early the following year to consult with all the relevant stakeholders on the exemption for religious purposes or if it should be done by the Committee.

Dr Newhoudt-Druchen stated that there were many concerns raised by the Rastafarian community; she would support that the Rastafarian community make more submissions, or further consultations take place with them. She suggested that this could not be confined to the Medicines and Related Substances Act or any one Bill – there needed to be more consultation with the Rastafarian community.

Adv G Breytenbach (DA) suggested that it would be much more helpful if the Department dealt with the matter than if the Committee did.

The Chairperson suggested that the following day, this would be one of the points that the Committee would need to make a decision on. After the Committee had gone through the responses, the Department would be given enough time to consult with the relevant stakeholders, primarily the Rastafarian community. When the Committee came back after the State of the Nation Address (SoNA) and started processing the Bill, then the Department would have done the consultations.

Highlights of Cultivation offences clause 3 and schedule 4 of the Bill Continued

Prescribed Cultivation of cannabis plants
Section 3(1)(a) and (b) read with Schedule 4: These provisions discriminate against large families or households, which were often poorer households, in that the combined amount allowed per dwelling was limited to two adults per dwelling. It is proposed that the amounts should be determined per adult and not per dwelling. The Department’s response was that most foreign jurisdictions provide for a household limitation. If this limitation was to be calculated on an adult per-household basis it would negatively impact on enforcement measures to limit cannabis for personal use and may be used as a facade for dealing in cannabis. The aims were not only to limit the plants but also cannabis that is derived from such plants.

Human Settlements
Clarity was requested if the South African context as it related to human settlements was considered. It was, the impact of measures to ensure that a cannabis plant was inaccessible to a child had been considered in the context of human settlements in South Africa. The need to ensure that cannabis was not accessible to children surely trumped an adult person's need to cultivate cannabis for recreational purposes. Similarities existed in the Tobacco Products Control Act and legislation regulating alcohol and limiting access to children.

(For full summary of submissions see attached documents)

Dr Newhoudt-Druchen asked for clarity about the above submissions and responses on the prescribed cultivation of cannabis and the right of the child. The use in foreign jurisdictions in households – many households in South Africa were over-crowded and she was unsure if in foreign jurisdictions there were over-crowded houses to the extent of South Africa. She suggested the South African context could not necessarily be compared to other countries. She suggested that in 4.9 the submission was centred around human settlements, and possibly over-crowding, rather than the right of the child. She asked for clarity about the quantity permitted per person in a household for personal use.

The Chairperson suggested that Adv Robbertse should indicate where the foreign jurisdictions were ‘developing’ or ‘developed’ countries were used as precedent.

Adv Robbertse responded to the question about the quantities. Most of the jurisdictions were developing countries, with the exception of Uruguay. The quantity permitted per household was for one adult, as it otherwise might discriminate. The practical implications of the availability of a large quantity of cannabis plants per person might pose challenges. In some households there may be eight people living there. The amount of cannabis plants that might be cultivated according to that ratio of people was quite substantial. This could be considered. The Department’s submission was that it needed to be restricted per household and not per person in a household. In some instances, cannabis was cultivated in cultivation room or cupboard, the period for harvesting was far quicker than that of outdoors. An alternative solution could be proposed. He would mark this issue for further consideration. What was raised by the Western Cape Government in their submission for 4.9, was the availability of the cannabis plant, particularly in contexts such as informal settlements where the proximity of households could make it difficult to monitor/regulate and restrict access to children. The main aim was to protect children against the harms of cannabis by making it inaccessible to them. the right of children to be protected from harm trumped that of an adult person to cultivate cannabis for recreational purposes. It needed to be ensured that it was inaccessible to children.

Highlights of Cultivation offences clause 3 and schedule 4 of the Bill Continued

Accurate standards pf cultivating cannabis
The standards and requirements outlined were suggested to be too vague. Public input submitted that it was preferable to include accurate standards in clause 3(2)(b) regarding the cultivation of cannabis. The regulations needed to deal with isolation of the cannabis plant area, size of growth rooms and safety and security of these areas. The Department put forward that an amendment may be considered to provide for requirements and standards, which should be prescribed and contained in regulations.

Restriction of cannabis plants in public spaces
The public submission urged that there should not a restriction on the possession of cannabis plants in public spaces. The department responded to stated that the reason for this restriction was to prevent the dealing of cannabis.

Highlights of Cannabis Offences clause 4 and schedule 4 of the Bill

Criminalisation of cannabis possession
Public submissions asked what harms were prevented by criminalising the behaviour of someone who possessed more than the prescribed quantity. The Department responded to state that the criminalisation aimed to address dealing in cannabis and protect others against the harms associated with cannabis use. If no restrictions were placed on the quantity of cannabis, it would be near impossible to address dealing in cannabis and the criminal activities associated with it.

Storage of cannabis in a secure space
The Bill failed to provide guidance about what was considered to be a secure place, but required that cannabis be stored in a secure place. The Department suggested that an amendment be made to provide requirements and standards which would be outlined in regulation.

The enforcement of cannabis use in public places
Public submissions questioned how use, such as the eating of cannabis would be enforced in public places. The Department stated that an oral fluid drug screener may be used to detect THC.

Consumption of cannabis
The prohibition against consumption would seemingly extend to food products, beverages, medicines, as well as products containing CBD oil which may contain trace amounts of THC. The prohibition appears to be overly broad. It was submitted that it should be restricted by to a threshold amount of THC and/or by providing detailed parameters in the Bill. The Department would amend the definition of cannabis, in line with previous comments about the definition, to include any substance which contained more than 0.2 percent THC.

(For full summary of submissions see attached documents)

Closing Remarks
The Chairperson stated that it was unlikely that the Committee could finish the presentation today. He suggested that the meeting be adjourned, to allow Members to prepare for the House sitting. The Committee would continue the following day.

Adv Breytenbach agreed.

Dr Newhoudt-Druchen agreed with the proposal. There was a lot of information presented.

The Chairperson suggested that the Committee deal with the minutes as well as the Budget Review and Recommendations Report (BRRR) after the Bill was covered the following day. The Committee would receive a briefing about the Legal Practice Act Regulations and the day could be used for the Subcommittee.

Dr Newhoudt-Druchen was in agreement. She suggested that, as there was no plenary on Friday morning, the afternoon meeting could move to the morning on Friday.

The Chairperson stated that the programme would be updated and the Committee could meet in the morning to deal with the regulations and the Subcommittee could also meet. Early the following week, the Committee could process the regulations. He thanked Adv Robbertse.

The meeting was adjourned.

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