Cannabis for Private Purposes Bill: response to public submissions continued; BRRRs

Meeting report

Opening Remarks
The Chairperson said the Committee would continue to hear responses to public submissions on the Cannabis for Private Purposes Bill from the Department of Justice and Constitutional Development. The Committee had received part of the responses the day before.

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 Smoking and Consumption Offences clause 5 of the Bill

Definition of private place does not consider the South African reality
Public submissions suggested that due to the likelihood of smoke impacting neighbouring properties, cannabis regulations should align with the standards applied to tobacco smoke. The Department would consider the Tobacco Products Control Act when drafting the regulations of clause 5(4)(a) of the Bill.

Comparison of regulatory controls for tobacco and alcohol use
A number of suggestions were made to align the Bill with the Liquor Amendment Bill, where the proposed drinking age was 21 years, as well as the Tobacco Control legislation, which attempted to limit second-hand smoking. Protective mechanisms were suggested, including advertising limitations. The Department responded that the Bill proposed stricter measures in regulating the smoking of cannabis than that of tobacco and alcohol. The proposed amendment of the drinking age to 21 years was not adopted by Parliament. Given that the Bill was not enabling the commercialisation of cannabis, the advertising limitations did not apply.

(For full summary of submissions see attached document)

Discussion
The Chairperson asked a question about the commercialisation of cannabis. Should the strategy of the Department of Trade and Industry came into effect, to enable massive commercialisation, how would it impact the provisions of the proposed Bill.

Adv Robbertse responded that if there was the commercialisation of cannabis, the legislation that would regulate cannabis for commercial uses would need to control that. If there was no such legislation, the Bill would be applicable. If there was other legislation, it would likely include the amendment of some of the provisions of the proposed Bill, to align it with commercialisation. This may be understood as an interim measure in the finalisation of related legislation.

Highlights of Offences Involving Child clause 6 of the Bill

Strict measures against the availability of cannabis to children.
The strict measures against availability of cannabis to children was largely supported in the public submissions. There was a suggestion that the age should be increased from 18 years to 25 years, particularly in light of the impacts on brain development, as highlighted in the meeting the day before. The Department replied that it needed to align the Bill with existing South African legislation and limit availability to persons under the age of 18 years.

Concerns about recreational use on youth’s development
The health risks of consuming marijuana was emphasised, including cognitive, mental and emotional health and development impacts. The risks and impact of foetus development were highlighted. The Department suggested that clause 6 and other provisions of the Bill aimed to protect children against the harms of cannabis.

(For full summary of submissions see attached document)

Discussion
Adv S Swart (ACDP) commented on concerns about adolescents. He suggested that this needed to be looked at carefully, particularly when reference was made to other legislation. The Committee needed to take a far more comprehensive look at this. The impact of cannabis use on adolescents was deeply concerning and he would raise this again. He asked if there had been any prosecutions where a person made use of a child to commit an offence, as outlined in the Child Justice Act, as this was a similar issue. He suggested that the Committee needed to consider increasing the age or having broader consultations.

Adv Robbertse responded to the question about the possible prosecutions that were implemented. He would need to check with the National Prosecuting Authority (NPA). It was necessary to provide for such an offence. It placed an obligation on a parent or guardian to ensure that the child was protected. It was part of the structure of protective mechanisms that the Bill aimed to implement. The age limit increase was previously proposed in the Liquor Act, some countries, such as the United States of America (USA) had implemented the age of 21 years. Various other countries stuck to the age of 18 years. He would discuss this further when the Act was considered and would provide some additional options on that.

Adv Swart asked that Adv Robbertse consult Prof Charles Parry and Prof Bronwyn Myers on possible legal amendments to assist with mitigating risks of cannabis, as very good arguments were put forward in their public submission from them. He realised that the Department had responded to their comments, but he would appreciate further consultation with the Professors to mitigate potential risks.

Dr W Newhoudt-Druchen (ANC) asked that additional reading or research be provided about pregnant women using cannabis during pregnancy. She was aware of foetal alcohol syndrome in the case of alcohol use during pregnancy. She had not seen any research of the use of cannabis by pregnant women and what the effect was on the unborn baby.

Adv Robbertse replied that the professors would be consulted. He would look at articles that might be available about the effect on unborn children. He would provide this to the Committee timeously before the Committee resumed with the Bill.

Highlights Penalties clause 7 of the Bill

Penalties inappropriate, given absence of ‘victim’ in crime
A public submission highlighted that the penalties were ‘unacceptable’ as the harms of cannabis had not been proved, and there was no victim in the ‘supposed’ crime. There was opinion, particularly on the internet that was in line with this and was justified by the fact that no one had died from cannabis use. It was a psychoactive substance, like any other drug it needed to be regulated. Many foreign jurisdictions that had legalised cannabis penalised dealing in cannabis, with the same penalties that applied to their drug legislation. In terms of the Drugs and Drug Trafficking Act, dealing in cannabis was punishable with imprisonment for a period not exceeding 25 years, or both such imprisonment and such fine as the court may deem fit to impose. The Bill, however, opted for a lesser penalty when it came to the offence of dealing in cannabis and offences involving a commercial quantity of cannabis plant or cannabis, namely a fine or imprisonment for a period not exceeding 15 years or to both a fine and such imprisonment. The fact that the possession of 300 grams of dried cannabis or a cannabis equivalent in a public place was regarded as a commercial quantity offence did not mean that a court would impose 15 years imprisonment.

Sentences imposed
Public submissions suggested that the sentences proposed in the Bill were unreasonable and harsh. The Department highlighted that the legislation did not seek to apply inappropriate measures against small quantities of drugs for personal use, particularly where there was no harm to others. However certain clauses aimed to address dealing in cannabis and protect people, such as children, from the impact of cannabis use

(For full summary of submissions see attached document)

Discussion
The Chairperson suggested that Adv Robbertse consult Judge Edwin Cameron about the proposed sentencing during the break. Judge Edwin Cameron would provide views on the issue of long sentences for people who were not guilty of violent crimes.

Adv Robbertse noted this suggestion and stated that the Department would consult Judge Edwin Cameron.

Highlights of Expungement of Criminal Records of persons convicted of possession or use of cannabis

Redress mechanism
It was submitted that consideration be given on a redress mechanism that would go hand-in-hand with expungement. The Department responded that the limited exception based on the right to privacy could not be regarded as the basis for redress due to a gross violation of human rights. South Africa had certain obligations under the International Drug Control Regime, which required that cannabis be criminalised.

Expungement of Criminal Records
Public submissions were received that supported the expungement of criminal records, as outlined in the Bill. The expungement of criminal records in respect of use and possession of cannabis was supported. It was suggested that some of the offences provided for in the Bill might, in the further development of legislation and the regulation of cannabis, give rise to a need for further expungement of criminal records. It was suggested that ‘dealing’ should also be expunged. A public submission proposed that court proceedings should be stopped. The Department responded to state that it would not do as suggested by this public submission.

Exceeding permissible amount of ‘dagga’
It was proposed that the Bill needed to allow for the expungement of criminal records of dealing in cannabis, which resulted from the unconstitutional presumption in terms of section 21(1)(a)(i) of the Drugs and Drug Trafficking Act. According to this presumption, if it was proved that the accused was found in possession of ‘dagga’ exceeding 115 grams, it should be understood that, until proven differently, the accused dealt in dagga. The Department agreed in principle with this submission, and it would be considered in the revision of the Bill.

(For full summary of submissions see attached document)

Discussion
Dr Newhoudt-Druchen asked if the process for expungement already in place? Would the process of expungement wait for the passing of the Bill, or was it something that could be started before that? If the Bill was passed, would there be a retrospective application of expungement.

Adv Robbertse stated that currently section 27(1)(b) of the Criminal Procedures Act provided for the expungement of certain criminal records of a person. Expungement was possible for all non-serious offences currently. The expungement mechanism in the Bill would only take effect once the Bill was passed by Parliament and subsequently implemented. This was in addition to what was contained in the Criminal Procedures Act. It would apply to previous convictions, retrospectively.

Highlights of Regulations clause 9 of the Bill

Regulations should be broadened
Public submissions suggested that clause 9 be redrafted to regulate additional aspects, such as hemp, chemicals used in the cultivation of cannabis and Tetrahydrocannabinol (THC) products. The Department responded to stated that the aim of the Bill was to regulate personal use of cannabis in the context of the Minister of Justice and Constitutional Development and Others v Prince judgement. Other departments were responsible for the other aspects of cannabis use. In foreign jurisdictions the chemical concerns centred around the chemicals used to extract THC.

Highlights of Repeal or Amendment of Laws clause 10 and schedule 5 of the Bill

Intoxication and driving under the influence of THC
Cannabis was a substance that remained in the bloodstream longer than alcohol. A person might test positive but no longer be intoxicated. The Department outlined how the limit would be established in the bloodstream, which had been studied extensively. The amendments to the National Road Traffic Act that prescribed the permitted level of THC in the blood (to determine intoxication) was based on the legislation of foreign jurisdictions, including Canada and the USA.

The scientific basis for the limits proposed in the National Road Traffic Act
It was suggested that the limits proposed in the National Road Traffic Act had no scientific basis. In response, the Department provided an in-depth analysis and citing of various scientific studies.

(For full summary of submissions see attached document)

Discussion
Dr Newhoudt-Druchen stated that she had questions about what was discussed the day before. It was stated that the cannabis plant size was limited to 15cm high and 15cm wide - that was quite small. She had never seen a cannabis plant, but from the pictures that were shown during public hearings, the plants could be quite big. She asked if the limitation of 15cm was around household cultivation. How did one limit a plant to that size?

She asked how the transport of cannabis would be enforced, particularly in instances where cannabis was transported for personal use in cases of sharing or not growing one’s own plant. How would such a scenario be enforced at a roadblock if one was found in possession of cannabis.

She noted that the strength of the THC was limited to 0.2 percent. During the public hearings it was said that the climate in South Africa made it problematic to keep the level at 0.2 percent. How and why did it get compared to foreign areas where the climate was different? She asked for more clarity on this.

Adv Swart stated that there were serious concerns about the possible abuse and unintended consequences of widespread recreational use of cannabis. The religious side of the issue was understood and a religious exemption would be considered and looked into. There were particular concerns about adolescents; he appreciated the fact that the Department would consult with the professors.

He understood that this was a very narrow Bill, but it had broad implications for other departments and legislation. To suggest that the Prevention of and Treatment for Substance Abuse Act would deal with the possible broader implications of substance abuse was insufficient. There were submissions before the Committee indicating the broad implications of substance abuse, particularly the impact on the Department of Health, which was severely constrained. When the Committee passed legislation, it needed to be for the common good. Legislation could not be passed that would cause greater harm to society. He suggested that it might be necessary to consider amending other pieces of legislation. This was a narrow Bill that had a broad impact on society. The social impacts and broader societal impacts needed to be looked into. He agreed that it was covered by other legislation but those departments were already severely under-resourced. He suggested that Adv Robbertse should look into consulting with other departments on this and other entities that were impacted by other pieces of legislation on cannabis. He shared the concern raised by Ms Newhoudt-Druchen about the level of THC, given the climatic conditions in South Africa. He emphasised that, as the legislators, this legislation needed to be considered broadly.

Adv Robbertse responded to the question about 0.2 percent THC. This requirement was specific to hemp. The current cultivation requirements did prescribe 0.2 percent. If one looked at the definition of hemp in clause 1.1, the Bill did not specify the level of THC. It was in the hands of others and other legislation to determine that amount. Not all countries found themselves bound by the 0.2 percent THC content. Some countries allowed 2.1 percent THC content. 0.2 Percent applied to cannabis. Currently, the definition of cannabis plant just made reference to any product that contained THC. That part of the definition would likely need to be amended to specify a minimum amount of THC in products. Schedule 6 of the Medicines and Related Substances Act was amended to include products that contained less than 0.2 percent. If the products containing THC were amended, that limit could be used, as described in schedule 6 of the Medicines and Related Substances Act. Ordinary cannabis that was used for recreational purposes, usually contained between 5 and 20 percent THC. That was the strength of the drug. There was no intention in the Bill to regulate that. There was a possibility that some people might possess more potent cannabis than others. Other countries similarly regulated the quantity of cannabis and not THC content.

Seedlings were considered a cannabis cultivation material, when smaller than 15cm. If it exceeded 15cm but was not flowering, it was considered an immature cannabis plant. If it was flowering it was considered a mature cannabis plant. That was relevant to a number of provisions in the Bill. In clause 2(3), people may exchange cannabis plant cultivation materials amongst one another and the prescribed quantity of cannabis plants. There was no limit on the free exchange of seedlings. A seedling of 15cm could be exchanged. There was a limit on cannabis plants that could be exchanged. He suggested that reference could be removed to the 15cm width and height of an immature plant, but if one did that to a seedling, there would be no distinction.

The Department would consult with the professors. He noted the concern about overburdening other departments and legislation where the regulation of cannabis was concerned. The Department of Justice did not have the personnel to deal with harm reduction measures. The Department’s main role was enforcement through the courts or if obligations were imposed, other departments needed to effect that within their mandate. This would be discussed with the other departments and entities.

Dr Newhoudt-Druchen asked that her question about the transport of cannabis be answered.

Adv Robbertse responded that cannabis could be exchanged between adults, but there were restrictions about material that could be transported. The permitted quantities were outlined. If one was in possession of cannabis plant cultivation material, which might be exchanged without remuneration, it could be transported. It was not criminalised in the Bill. Clause 4 provided for the transport of cannabis in a vehicle. There were certain standards that had to be complied with when transporting raw cannabis, as outlined in clause 4(6) of the Bill. It required that when transporting cannabis, it needed to be in a sealed container or in the boot of one’s car or concealed from view.

The Chairperson encouraged the Department to interact with all the relevant stakeholders, including the Rastafarian community in drafting the legislation. The Committee had identified other stakeholders, such as Judge Edwin Cameron, but the Department was not limited to engaging with only those stakeholders. The Committee would be in a position to deal with the Bill after the State of the Nation Address, which would be around late February/March 2022. The Departments’ stakeholder consultations and the drafting of the Bill would be considered by the Committee in January and February 2022.

Budget Review & Recommendations Report: Department of Correctional Services & Judicial Inspectorate for Correctional Services for 2020/21 & first quarter 2021/22
The Chairperson took the Committee through the Budget Review and Recommendations Reports (BRRR) for the Department of Correctional Services and Judicial Inspectorate for Correctional Services.

The Committee had considered the financial and non-financial performance of the Department of Correctional Services and the Judicial Inspectorate for Correctional Services for 2020/21 and the first quarter of 2021/22 and reported thereon.

Mr X Nqola (ANC) suggested a correction to the table of the audit outcomes. For the 2020/21 financial year, under ‘areas of qualifications’ for the unqualified audit outcome, he noted that it could be ‘unqualified without any findings’ or ‘unqualified with findings.’ Should that not be noted there?

The Chairperson stated that it was ‘unqualified with matters of emphasis.’

The Committee Secretary stated that there were two issues, underspending and wasteful expenditure that had not been investigated.

The Chairperson asked that this be corrected.

The Committee Secretary stated that it would be included.

Mr W Horn (DA) asked that the heading be changed, as it spoke to ‘areas of qualification,’ which was technically not correct as it was an unqualified audit. He suggested that it state ‘areas of qualification/matters of emphasis.’

The correction was accepted.

Dr Newhoudt-Druchen highlighted that at the end of page nine, under 8.2.4 in brackets it said ‘(searching).’ Clarity was requested about what this meant and why it was included.

The Committee Secretary responded that when the Department reported that some of the contributory factors to the escapes, were that officials did not comply with security policies and procedures, specifically the searching of offenders in correctional facilities. That was why he had included it, to indicate the ‘searching of offenders.’

The Chairperson asked how somebody who might read the document ten years later would understand the ‘searching’ in brackets.

The Committee Secretary apologised and stated that it would be corrected.

Dr Newhoudt-Druchen moved to adopt the Report.

Ms N Maseko-Jele (ANC) seconded the adoption of the Report.

Mr Horn asked that the reservation of the Democratic Alliance (DA) be noted.

The Report was adopted with corrections.

Budget Review & Recommendations Report: Office of the Chief Justice & Judicial Administration for year ending 31 March 2020 and second quarter 2021/22
The Chairperson took the Committee through the BRRR for the Office of the Chief Justice and judicial Administration for the year ending 31 March 2022 and the second quarter of 2021/22.

The Committee having considered the financial and non-financial performance information of the Office of the Chief Justice and Judicial Administration for the financial year ending 31 March 2020 and the first quarter of 2021/22 reported thereon.

Dr Newhoudt-Druchen moved to adopt the Report.

Ms Maseko-Jele seconded the adoption of the Report.

Mr Horn reserved the position of the DA.

The Report was adopted.

Committee Minutes dated 7 September 2021
The Chairperson tabled the minutes for consideration.

In this meeting the Committee received a briefing on the Department’s response to the submission on the Criminal Procedure Amendment Bill and briefing on the National Council of Provinces (NCOP)’s proposed amendments to the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill and Domestic Violence Act Amendment Bill.

Ms Maseko-Jele moved to adopt the Minutes

Dr Newhoudt-Druchen seconded the adoption of the Minutes

The Minutes of 7 September 2021 were adopted.

Minutes 8 September 2021
The Chairperson tabled the minutes for consideration.

In this meeting the Committee received deliberations on the Domestic Violence Act Amendment Bill and the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill as well as deliberations on the processing of vacancies at the Information Regulator and consideration of Committee reports and minutes.

Mr Nqola moved to adopt the Minutes

Dr Newhoudt-Druchen seconded the adoption of the Minutes.

The Minutes of 8 September 2021 were adopted.

Minutes 9 September 2021
The Chairperson tabled the minutes for consideration.

The Committee received a briefing by the Parliamentary Legal Services on procedure to follow when dealing with the decision by the Judicial Service Commission concerning the complaint by Justices of the Constitutional Court against Judge President M.J Hlophe.

Dr Newhoudt-Druchen moved to adopt the Minutes.

Ms Maseko-Jele seconded the adoption of the Minutes.

The Minutes of 9 September 2021 were adopted.

Minutes 9 November 2021
The Chairperson tabled the minutes for consideration.

This meeting covered the shortlisting for the Information Regulator’s vacancies, briefing by the Auditor General (AG) of South Africa on the audit outcome of the Department of Justice and Correctional Services, the political overview by the Minister of Justice and Correctional service and a briefing by the Department of Correctional Services and the Judicial Inspectorate for Correctional Services on their 2019/20 performance audit outcome and the 2020/21 Annual Report and quarterly performance 2021/22.

The Chairperson requested clarity about an apology recorded, given that the Member served on the Portfolio Committee on Trade, Industry and Competition.

The Committee Secretary indicated that it was a standing apology, when the Member was available she would attend the meetings of the Committee.

Dr Newhoudt-Druchen highlighted a grammatical correction that needed to be made to page 4.

Dr Newhoudt-Druchen moved to adopt the Minutes.

Mr Horn seconded the adoption of the Minutes.

The Minutes of 9 November 2021 were adopted with the correction.

Minutes 10 November 2021
The Chairperson tabled the minutes for consideration.

The Committee received a briefing by the Office of the Chief Justice, Public Protector of South Africa and the South African Human Rights Commission on their 2020/21 Annual Reports and quarterly performance for 2021/22

Dr Newhoudt-Druchen moved to adopt the Minutes.

Mr Horn seconded the adoption of the Minutes.

The Minutes of 10 November 2021 were adopted.

Minutes 12 November 2021
The Chairperson tabled the minutes for consideration.

In this meeting the Committee received a briefing by the Department of Justice and Constitutional Development as well as the National Prosecuting Authority on their 2020/1 Annual Report and quarterly performance 2021/22.

Dr Newhoudt-Druchen moved to adopt the Minutes.

Mr Nqola seconded the adoption of the Minutes.

The Minutes of 12 November 2021 were adopted.

Minutes 17 November 2021
The Chairperson tabled the minutes for consideration.

In this meeting the Committee received an update about the interviews to fill vacancies at the Information Regulator.

Dr Newhoudt-Druchen highlighted a correction that needed to be made to page 3 section 3.2, where the initial of the person needed to be corrected.

Dr Newhoudt-Druchen moved to adopt the Minutes.

Mr Horn seconded the adoption of the Minutes.

The Minutes of 17 November 2021 were adopted with the correction.

Minutes of 18 November 2021
The Chairperson tabled the minutes for consideration.

In this meeting the Committee considered and adopted the draft report on the filling of vacancies at the Information Regulator.

Ms Maseko-Jele moved to adopt the Minutes.

Dr Newhoudt-Druchen seconded the adoption of the Minutes.

The Minutes of 18 November 2021 were adopted.

Minutes of 19 November 2021
The Chairperson tabled the minutes for consideration.

In this meeting the Committee received a briefing by the Special Investigating Unit (SIU), Legal Aid South Africa and the Information Regulator on the 2020/21 Annual Report and quarterly performance 2021/22.

Mr Horn made a minor correction wherein the SIU was referred to as ‘the Department,’ which was technically not correct.

Mr Horn moved to adopt the Minutes.

Ms Maseko-Jele seconded the adoption of the Minutes.

The Minutes of 19 November 2021 were adopted with the correction.

Discussion
The Chairperson stated that on 10 December 2021, there would be a sitting In Parliament in the morning. He proposed that the Committee secretariat organise transport that would take the Committee from Parliament to Mr J Selfe’s (DA) house. The organised transport would then take Members to their respective villages or homes. He suggested that this would be a good bonding opportunity.

Adv G Breytenbach (DA) offered to organise transport through Mr Bagraim. That was an option if it was difficult to arrange transport. She stated that the DA was incredibly grateful that the Committee was prepared to do this. Mr Selfe would appreciate it.

The Chairperson stated that Mr Selfe was ‘one of them.’

Mr Nqola reiterated that they were ‘team justice.’

The Chairperson stated that the Committee was one family through good and bad times. It had been suggested that the Committee could visit the home of the late Ms Jacqueline Mofokeng of the African National Congress (ANC) when the team was in Gauteng for oversight, as within a month of her departure her mother had also passed.

Adv Breytenbach agreed.

The Chairperson stated that the Committee would soon realise that the Members spent most of their time at work, work became an extension of their family. The programme would change a bit. From the following week, there would be one week for the Committee and one week for the Subcommittee. It would be important that a meeting took place where a draft programme for the oversight visit could be decided on so that all Members concerns/interests were broadly covered by the visit.

The meeting was adjourned.