Deliberations on the Cannabis for Private Purposes Bill

Meeting report

The Chairperson made brief opening remarks and welcomed all present in the meeting.

Cannabis for Private Purposes Bill (refer to working Bill document)

Adv Sarel Robbertse, Senior State Law Advisor, Department of Justice and Constitutional Development (DoJ&CD), took the Committee through the Bill. He had met with Judge Gordon on penalties that should be imposed. Judge Gordon had said cannabis should be treated similarly to alcohol in terms of penalties. He submitted an article on the effect of cannabis on foetal development to the Committee, indicating that while it was similar to the effect of alcohol and tobacco, the full effect on foetal development was not known conclusively. He discussed the definition of an adult person, observing that raising the age at which a child became an adult above 18 years would be contrary to the Prince Judgment. He reported that in many jurisdictions, the legal age limit for cannabis use was the same as that for alcohol consumption and that research by Prof Doug Sellman had concluded that cannabis was no more harmful than alcohol. He drew attention to section 28(3) of the Constitution, section 17 of the Children’s Act, where an adult was defined as anyone over the age of 18, and to section 1 of the Child Justice Act, where the same definition prevailed in most circumstances. He also drew attention to the Tobacco Products Control Act and the Liquor Act, which set the age limit for the sale of tobacco and alcohol at 18 years. He recommended that the definition of adult should not be amended.

Discussion

Definition of ‘adult’ and possible harmful effects of cannabis consumption by young people

The Chairperson recalled that the matter had been discussed the previous week and the general consensus had been the definition of adult should not be amended.

Mr S Swart (ACDP) maintained that insufficient attention was being paid to public health issues arising from the access of children to cannabis and believed the age should be raised to 21. The recent research linked cannabis consumption to adverse effects such as motor vehicle accidents, psychotic incidents, HIV, hepatitis B and C and tuberculosis. These were serious issues. The Department itself predicted that legalized use of cannabis would give rise to an increase in cannabis use not only by adults but also children. He acknowledged that there were serious harms associated with alcohol that needed to be addressed too, but he maintained that the public health implications were not being sufficiently addressed.

Ms N Maseko-Jele (ANC) asked how the law would handle cases where 18 year-olds were still at school. Were any restrictions planned? Would they be allowed to use it one school premises?

Adv Robbertse explained that the Schools Act provided for the confiscation of cannabis at schools. He believed that this legislation would be sufficient to prevent cannabis from being used at schools. There was a possibility that clause 5 could be amended to provide for the Minister to prohibit persons from possessing cannabis in certain places indicated in regulations.

Ms Maseko-Jele proposed that clause 5 be amended in this way, rather than relying on references to other legislation.

The Chairperson invited Ms Maseko-Jele to raise this concern again when clause 5 was under discussion.

Mr Swart asked whether a judgment could be expected from the Constitutional Court soon on a particular case that would give clarity to the restorative justice approach. He asked Mr Robbertse to respond to the Committee’s request that he consult with the Department of Health and the Department of Basic Education on the effect of cannabis on children.

Mr Robbertse replied he had consulted in a limited way with the Department of Health but not the Department of Basic Education on this matter. Professors Paddy and Meintjies had provided evidence of harm associated with cannabis consumption by people under the age of 25, but other research did not support the conclusion that ordinary, light use of cannabis would necessarily lead to adverse effects and affect brain development. It was also important to remember that alcohol and tobacco have similar effects on the developing brain and that alcohol may be even more harmful than cannabis in some cases, depending on the quantity that is consumed and how regularly this is consumed. A young person consuming cannabis on an infrequent basis would probably not experience the same side effects as one who did this on a daily basis. The same applies to persons who consume alcohol.

The Chairperson asked the Committee to agree that age 18 would be part of the working draft, noting the objection of Mr Swart.

Members agreed to proceed.

Definition of ‘cannabis’ in terms of the percentage of tetrahydrocannabinol (THC) by volume

Adv Robbertse offered a proposed change to the definition of ‘cannabis,’ according to which it would refer to any substance containing more than 1% THC by volume or, in the case of certain sections, mostly relating to children, to any substance containing more than 0.2% or 0.1% or 0.05% THC by volume. said that any substance which contains THC and substances with trace THC can be regarded as cannabis. The THC quantity specified is in breach of the Act in terms of the legal consumption which 0.001%. Option 2 proposes that one must prescribe the volume of THC per substance which will qualify as cannabis with 1% THC. When relating this to children the amount of 0.2% should be considered. 0.01% of the volume of THC per substance may also be considered in relation to children.

Mr W Horn (DA) recalled that there had been criticism of the 0.2% limit but asked what the scientific basis for a 1% limit was. He observed that the commercialization of cannabis and cannabis-related products was on its way. The Bill be positioned so that it would not be inconsistent with commercialisation in future.

The scientific basis for a lower limit of 1% THC by volume; the implications of the limit for the commercialisation of cannabis products

The Chairperson wondered how the Bill would make reference to a policy that still needed to be developed.

Mr Horn replied that he did not think it needed to be linked to a policy, but rather to any legislation that would regulate the commercialization of the cannabis industry, perhaps on an interim basis.

Mr Swart appreciated the Department’s attempts to protect children more, particularly in clause 6(5). He asked if there wasn’t a contradiction in the definition relating to hemp and medicinal usage of low levels of THC.

Adv Robbertse replied that this definition related to a flower or cob of a cannabis plant, which contained up to 18% THC. There had been requests to exclude substances that contain trace elements of THC, such as cannabidiol (CBD) oil, which is already available on the market. The proposed definition was an attempt to incorporate a more realistic approach to the quantity of THC in any substance. Edibles or cannabis-infused products can only contain a certain amount of THC and if this was not regulated, a person could consume it while operating a vehicle. A slightly higher percentage of THC must be prescribed for a substance to regulate it effectively. A limit as low as 0.2% in all cases was nonsensical and would not be enforceable,

The Chairperson noted that Mr Horn’s question had been about the scientific basis for a 1% limit.

Adv Robbertse explained that it was a relatively arbitrary low amount intended to make the Act enforceable. It could perhaps be a bit higher but it should not be any lower. The 0.2% meanwhile was provided for by the Medicines Act, which also provided for a limit of 0.001%, which was considered unworkable for the Bill under consideration, which is why 0.2% had been suggested. Hemp was defined in line with definitions from the USA and the European Union (EU) as containing less than 0.2% THC. Such a substance would have a limited narcotic effect on a person. In South Africa, standards still need to be established. 0.2% was a reasonable starting point, but in some instances, a lower limit should be set, particularly where children were concerned.

Mr Horn accepted the explanation but added that the Committee should be aiming to give effect to the Constitutional Court order. He thought that the lower limit should be set at the tipping point where the effect was similar to smoking the cob. This was the pertinent question. He was concerned that if the limit was too low, the Bill could be criticised for not giving effect to the order.

Mr Swart appreciated the difficulties, adding that the Committee needed to be mindful of how different people may respond to different amounts of THC. He asked what the impact would be on the commercialization of products with very low THC levels? He recalled public submissions arguing that 0.2 % was too low.

Adv Robbertse explained that the content for regulatory purposes could be increased up to 5%. He pointed out that the uptake of THC could depend on how it was consumed, and there were no clear guidelines. This limitation was calculated on a possible drug effect. One must ask how much needs to be consumed to have a drug effect. This also depended on context. In Australia, for example, there was a 1% limit, but this was combined with strict controls.

The Chairperson was concerned that the scientific basis would also be questioned if the Bill was taken to court. He appreciated the difficulties involved in setting a precise limit but observed that it would not be possible to defend an arbitrary limit in court.

Adv Robbertse accepted the point but said that it would also be hard to argue that a 1% or 2% limit was unconstitutional. In other jurisdictions, such as Canada, it was also arbitrarily determined. Equivalencies between dried cannabis cobs and cannabis concentrates and cannabis-infused products were similarly arbitrary. It was necessary however to establish a minimum regulatory standard. The limit could even be set at 18% but the effect of this would be that a person may then consume a substance containing 17% of THC and this would not be deemed an offence. The drug effect must be considered.

The Chairperson suggested that the Committee mull over this question come back to it the following day. He asked how commercialisation of cannabis would be catered for.

Adv Robbertse replied that regulations need to be prescribed on a substance containing THC in relation to the Drugs and Drug Trafficking Act. He said he would consider it further to provide further input the following day, with reference to foreign jurisdictions.

Mr Swart said when considering foreign jurisdictions, he should consider the particular agricultural and climate situation prevailing in South Africa. The 1% limit in Australia might be due to the climate, while a limit of 0.2% in South Africa might inadvertently exclude large numbers of farmers in the Eastern Cape, for example, growing cannabis for medicinal purposes.

The Chairperson agreed that this was important.

Adv Robbertse said this had been thoroughly considered. It was for reasons such as these that the determination of a precise limit had been left for later.

The Chairperson said the Committee would come back to this the following day.

Provision for commercial cultivation of cannabis plants

Adv Robbertse said that clause 1(2) had received some criticism. He proposed a new clause that specifically provided for commercial activities in respect of recreational cannabis. The new clause makes it clear that it must be authorised and regulated by national legislation under a licensing regime that provided for different classes of license, local economic growth and employment, and local skills development. It must have regard to broad-based black economic empowerment (B-BBEE) and the Rastafarian community in particular, and various other specific requirements.

Mr Horn asked to what extent this new proposed clause was the product of engagements with, for example, the Department of Trade, Industry and Competition (DTIC). He criticised the fact that some form of existing knowledge, skills or expertise in the cultivation or the processing of cannabis and related products was not part of the criteria for the issuing of a license. The skills transfer requirements seemed to imply that anybody without specialized skills could obtain a license. One of the critical issues that had emerged in the public hearings was that the legalisation should not sideline those who were already, albeit illegally, cultivating cannabis. On the contrary, they should be placed on the inside track. He also warned that B-BBEE could in certain cases be a negative requirement, observing that the Rastafarian community was not exclusively black.

Adv Robbertse replied that the new clause did incorporate the requests of DTIC. There had not been broad consultation on sub-clause 3 but it did follow policy and the public participation process, while the harm reduction provisions, for example, followed the research and international examples. On talent expertise, provisions could be inserted to provide for this, or considerations could be limited and made discretionary. He also noted that the provisions of sub-clause 3 were limited by the national legislation referred to in sub-clause 2.

Mr Swart argued that this sub-clause changes the framework of the Bill from being purely regulatory to now include commercialisation. He had serious concerns about the provisions for operators or farmers who have grown cannabis for recreational use and who would like to legalise their operations. They seemed to imply that only B-BBEE groups or Rastafarian communities would be able to legalise their operations. This would have consequences for many people. It would be exclusionary if only these segments of society would be able to apply for licenses. He thought that the public would be very interested in commenting on this proposed new sub-clause. He recalled that one of the concerns that people had raised was the limited licensing that was available and the potential for political influence in awarding them. He appreciated that the clause had been proposed at the behest of DTIC but wanted to know the extent to which there had been consultation on it.

The Chairperson added that issues were also raised about the exorbitant cost of obtaining the permits and licenses.

Mr Horn said that the Committee should obtain a legal opinion on including such a completely new clause given that public participation had already taken place. He also asked for confirmation of whether the Bill was a section 75 Bill. In different provinces, there were entities that already dealt with cannabis cultivation in an informal way, which might require public participation on a provincial basis.

Adv Robbertse emphasised that according to sub-clause 2, other legislation must be enacted to regulate commercial activities. It would be possible to change sub-clause 3 from a peremptory to a discretionary clause, or the wording could be changed in other ways.

Dr Barbara Loots, Parliamentary Legal Advisor, asked for a chance to study the clause, as she was seeing the actual drafting for the first time. She felt that it would probably be better to err on the side of caution when it came to public participation.

Mr Horn felt that the clause went further than directing other legislation to be passed. He thought that the clause should not be included, even as an effective interim regulatory measure, in the absence of public participation. This was particularly important given the length of time that it could sometimes take for legislation to be passed.

Mr Swart agreed with Mr Horn that the clause went further than Adv Robbertse claimed, particularly if sub-clause 3 contained the word ‘must’ rather than ‘may.’

The Chairperson agreed that the Committee should wait for Dr Loots’ opinion before deliberating further on this clause. He asked if there would be any problem of procedure if further public participation only took place when the Bill was before the National Council of Provinces (NCOP).

Special measures to accommodate cultural or religious communities

Adv Robbertse noted that some Rastafarian communities had made submissions before the deadline. He had not yet had time to consider the matter fully, but one matter of concern was the criteria be used to identify cultural or religious communities. He offered a work-in-progress draft clause to provide for these communities and emphasised that further consultation was called for.

Mr Swart was surprised at the suggestion that Parliament might issue permits to cultural or religious communities, as normally this would be the responsibility of the executive branch, with Parliament exercising oversight. How would this work in practice? He also observed that the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities might have a role to play.

Adv Robbertse replied that subordinate legislation had to be approved by Parliament before being published in the Gazette. A permit in this case should be thought of as a piece of subordinate legislation.

Cultivation offences

Adv Robbertse observed that the offences in clause 3 might need to be revised. In particular, Judge Cameron was of the view that it should be regulated similarly to alcohol, and therefore the prescribed sentences might need to be lighter, to coincide with the Liquor Act. He continued to read through the Bill.

Closing

The Chairperson said that the main outstanding issues related to the percentages of THC and the need for further public participation. Did members have any other matters they wanted to raise?

Adv G Breytenbach (DA) noted that clause 6 made reference to a guardian, while according to the Children’s Act a guardian may not necessarily be a caregiver. She asked for clarity to be given on this in the next meeting.

Ms Maseko-Jele recalled her earlier question about the use of cannabis in schools. She thought it should be provided for in clause 5.

Mr Robbertse said that he would draft further amendments to clause 5 and provide further clarity on clause 6 the following day.

The Committee discussed its programme, which would possibly include an oversight visit to Limpopo, workshops with Judge Edwin Cameron and Professor Lukas Muntingh of the Dullah Omar Institute, and an international study tour.

The meeting was adjourned.