Cannabis for Private Purposes Bill: deliberations

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Justice and Correctional Services

09 March 2022
Chairperson: Mr G Magwanishe (ANC)
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Meeting Summary

In this virtual meeting, the Department of Justice and Constitutional Development briefed the Committee on the working document of the Cannabis for Private Purposes Bill, which took into consideration the public submissions and previous Committee discussions.

The Committee deliberated on the proposed amendments to definitions, the proposed prescribed percentage quantities of Tetrahydrocannabinol and the impact such changes would have to other parts of the Bill as well as in practice.

The discussions about the definition of ‘cannabis’ continued from the meeting held the day before. It was suggested that the definition include any substance that contained more than 0.2 percent of Tetrahydrocannabinol. This concentration was discussed, with reference to other international precedent. Concern was raised about the percentage of Tetrahydrocannabinol prescribed in the Bill and how this might result in the criminalisation of private use, which would go against the intent of the Constitutional Court Judgement. Concern was raised about the lack of consistency in the potency of plants across regions and how this might subject private citizens to criminal behaviour, particularly if the prescribed level of Tetrahydrocannabinol was set too low. Clarity was requested about how the Bill would practically be enforced, particularly in instances of road blocks, wherein the potency would need to be measured. It was asked if the concerns of the Rastafarian community, as displayed during march to Parliament had been taken into account in the amendments to the Bill. Issues around the administering of cannabis to children was raised, particularly wherein there was inconsistency with existing legislation, such as the Medicines and Related Substances Act. It was asked if other options, besides jail time, could be considered, particularly given the overcrowding of South African jails. Concerns were raised about the issuing of permits and the role of Parliament in the process. It was suggested that Parliament’s mandate went only as far as oversight.

The Committee briefly discussed the way forward and how the programme could be scheduled to ensure it was finalised during the first term. It was suggested that Parliamentary Legal Services and the Department of Justice and Constitutional Development work together in finalising the draft and determining if further public engagement was needed on the amended Bill.

Meeting report

The Chairperson made brief opening remarks and handed over to Adv Sarel Robbertse, who would take the Committee through the clause by clause deliberations on the Bill.

Cannabis for Private Purposes Bill
Adv Sarel Robbertse, Senior State Law Advisor, Department of Justice and Constitutional Development, presented the Department’s proposals on the Bill. The previous day he had been asked to address certain issues further; he would do so during the meeting. The document before the Committee was an updated version of what had occurred during the meeting the day before.

Definitions and Interpretations

Definition of ‘cannabis’

The day before it was proposed that the definition of ‘cannabis’ include any substance that contained ‘more than 0.2 percent of Tetrahydrocannabinol (THC). ‘This definition had previously read ‘a substance that contained THC.’ He suggested this could be amended to read a ‘certain concentration of THC or 0.01 percent THC.’ There were then some exclusionary provisions, such as the use of cannabis in motor vehicles and amongst children. There were suggestions that this be limited to 0.5 percent or 0.01 percent THC per volume and then to further specify fresh cannabis, dried cannabis and cannabis concentrate as classes of cannabis.

He noted that the day before Mr Horn had raised a question about the concentration of THC proposed in terms of the various options. The provision provided for the foods of the cannabis plant, to contain up to 18 percent THC and provided for a lower amount of THC for any other product.

In response to the request to consider other available documents on this, he had looked at foreign legislation, such as the Canadian legislation. The equivalent of THC that was prescribed varied across categories or classes of cannabis prescribed. The equivalent of 15 grams of the edible product was equal to one gram of dried cannabis. Edible products usually contained some level of THC and/or cannabis flowers. 70 Grams of a liquid cannabis product could be made from the flowers of the plant. As an equivalent, concentrates were provided for up to the amount of 0.025 grams. Canadian laws also made reference to the seeds, which were not applicable in the case of this Bill.

Colorado prescribed certain other categories of cannabis equivalence, such as vapes. One could only purchase a certain amount, when it came to vapes, containing up to 800mg of THC.

The Missouri Department of Health Regulations had been considered, which had a comprehensive calculation of how to determine cannabis concentrates, called the Missouri Marijuana Equivalency (MME) Unit, which prescribed a monthly amount. The equivalency used was 3.5 grams of dried cannabis – that was specified as a unit in the MME calculation. One could possess one gram of concentrated marijuana or 300 milligrams of THC infused products.

Saskatchewan (a Canadian province) provided for a more useful equivalency, providing for one month’s dried cannabis and the equivalent of 15 grams fresh cannabis. Solids that contained cannabis were also referred to. 15 Grams of ‘solids’ contained a percentage of three percent or less THC. Non-solids containing 70 grams of cannabis qualified as substances with three percent or less THC. Saskatchewan law considered cannabis concentrates, as one gram of cannabis equaling 0.25 grams of cannabis concentrate – similar to that of the Bill. THC was then limited to three percent in cannabis concentrates. 

The Dakota Health Regulations used an equivalency to one ounce of cannabis, which was 28 grams. The specified concentrate of cannabis was 800 milligrams. Vaporising devices were also referred to – 800 milligrams was equal to 28 grams. Edibles were qualified to certain minimum concentrations of THC – 10 milligrams of THC. This was further qualified for edible servings (80 servings). South Dakota legislation, similarly, made provision for a cannabis equivalency. However, it was not specified any further than that – it was likely not of any help or assistance.

In the Bill, he had provided for a new definition of THC. In the cannabis the plant, THC was the chemical that caused the drug effect. However, in isolation it did not cause any effect – it needed to be converted to produce the drug effect. This amendment would apply to wherever cannabis was mentioned in the Bill, it would include any substance that contained more than 0.01 percent THC or Tetrahydrocannabinol Acid (THCA). The effect of the amendment to ‘cannabis’ and ‘THC’, was that it would include the flowering or fruiting top, which contained a percentage of THC in excess of 0.01 percent. That was relevant to the other exclusionary provisions in the Bill. It would refer to both THC and THCA.

Amendments that could be considered to the schedule to the Bill, which he had not yet affected, were mainly in relation to categories that were prescribed as cannabis equivalents. Cannabis concentrates and cannabis solid concentrates needed to be qualified –it needed to contain at least an amount that exceeded the minimum concentration of THC. There was a country that stated that products needed to exceed three percent of THC. For the purposes of the Bill, it could be higher and prescribe the concentration of the concentrates, with a quantity of five to eight percent THC per volume of the concentrate. In most instances, concentrates contained THCA that had been extracted from a plant – something like hashish. It could contain quantities of THC of up to 40 60 percent. There was information about higher quantities of cannabis concentrates being made in laboratories up to 80 or 90 percent. It would need to be indicated that the cannabis concentrate needed to contain a minimum quantity of THC – above five to ten percent of THC.

Mr W Horn (DA) stated that the primary task of the Committee was in line with the Constitutional Court judgement to regulate the private use of cannabis and cannabis related products. If one spoke about edibles, what was the danger of keeping to the previously proposed 0.01 percent THC, in terms of it impacting ordinary use and the criminalisation thereof. He understood that there was variance in the potency of products. The task of the Committee was to find the ‘sweet spot’ where the typical use of edibles, vapes and oils would not subject private citizens to criminal behaviour. He was aware, through the public participation process, that the potency of cannabis and cannabis plant material varied from one region to the next depending on factors including climate. The task of the Committee would be to find a balance which would not render the majority of private users to possible criminal charges.

Adv G Breytenbach (DA) asked how the Bill, once passed, would be policed and enforced.

The Chairperson stated that he was similarly interested in the issue raised by Adv Breytenbach, particularly regulating use and transport in vehicles. Was there a way of testing if the product was above the required THC levels? How would it be policed? What infrastructure existed to ensure that anything above the legal limit would be properly policed?

Ms N Maseko-Jele (ANC) asked a question about the march of the Rastafarian community, that took place at Parliament, three weeks earlier. She noted that the Committee often did not get to the petitions submitted – she suggested this be attended to. The Committee should respond to these issues. Was anyone aware of the issues raised by the Rastafarian community? From her understanding it had to do with the Bill. Did the definition of ‘cannabis,’ as presented by Adv Robbertse, address the grievances of the Rastafarian community.

The Chairperson asked if Adv Robbertse had sight of that Memorandum. He noted that Adv Robbertse had principally responded to submissions that were made through the public participation process. It would set a dangerous precedent, if anyone who organised a march outside of the regulated public participation period was responded to in this forum/process. He suggested the Committee focus on the issues raised through the prescribed public participation process.

Ms Maseko-Jele agreed with this. She asked if the issues highlighted during the march had been addressed outside of this forum.

Adv Robbertse responded to the question asked by Mr Horn about the specific objective criteria to evaluate the possession for personal use of cannabis. He had indicated the cases of other countries – rather arbitrary determinations were applied of what should be allowed for regulatory purposes. The adequate amount determined would likely impact other provisions of the Bill. There was a possibility that various cultivars of cannabis, cultivated for private purposes, might contain something that had a concentration of 0.001 percent or above. The drug effect was very low. It was arbitrarily determined - this could be increased. He suggested that the quantity of THC be increased to 0.2 percent; he noted that 0.01 percent did have an effect on a person, especially when it came to edibles. Smoking likely had a lesser effect on a person. He proposed that a policy decision be made to adopt an amount of 0.05 percent or 0.01 percent, which was above the allowable amount for non-medicinal use.

The Chairperson stated that private use would not only mean smoking or using it for medicinal purposes. For instance, during the public hearings it was found that one could use cannabis for the building of houses. One could also use it to make clothing. He asked what the impact of the proposed percentages would be on commercialisation, wherein a higher amount might be needed.

Adv Robbertse stated that the use of the seedlings, stalk, branches etc, without the fruit or the cannabis crop was largely excluded from the definition of ‘cannabis,’ as it would contain an amount less than prescribed. In the case of hemp, if it was cultivated in line with other legislation, it would be excluded from the definition of cannabis by virtue of the definition of ‘hemp.’ The definition of ‘cannabis plant’ excluded hemp. The percentage of THC present in hemp would exclude it from the definition of ‘cannabis.’ Providing for one percent of THC, would ensure that hemp was excluded. Other legislation could be promoted to provide for commercialisation. This should not influence the Bill, except if a higher amount of THC was permitted to be present in hemp, which was unlikely.

He responded to the question about how the Bill would be enforced. Like any other drug offence that needed to be policed, it usually involved the arrest of the person under suspicion, if the person was in possession of a certain substance. The substance was then taken to a laboratory, where it was subjected to a process to determine the substance and its potency. This was the case with the Bill. There was no other option. It did place a high administrative burden on the resources of the State. There was a need for a regulatory framework for enforcement. 

Mr Horn suggested that the proposal made by Adv Robbertse of increasing the 0.001 percent to 0.2 percent was something that the Committee should consider.

The Chairperson stated that the issue that needed to be discussed or agreed on was on the issue of 0.01 or 0.2 percent THC. He noted that Mr Horn proposed that it be increased to 0.2 percent. He asked that the Committee discuss this. He did not want to leave too many items unattended in finalising the Bill.

No proposals were made by Members of the Committee.

Given that there were no suggestions, he suggested the Committee come back to the issue at a later stage. He asked if Adv Breytenbach was comfortable with the answers to her questions about policing.

Adv Breytenbach stated that she was covered. She acknowledged that it was an unfair question, in that she could have answered it herself – specifically what was required to enforce the Bill. She was not sure how the Bill would practically be enforced and policed. It was more a question to the Committee than to Adv Robbertse.

The Chairperson stated that Ms Maseko-Jele’s question about commercialisation was covered the day before – but the Committee needed to go back to that discussion.

Adv Robbertse outlined the second option for consideration, on the storage of cannabis, possession of cannabis in a vehicle on a public road or in cases where a guardian permitted a child to possess or deal in cannabis. A concentration of 0.2 percent THC per volume was proposed as this was on par with other legislation that regulated the cultivation of hemp. The problem was that the legislation that dealt with hemp had not yet been promulgated. If one delayed and went for a different option, there was a chance that in the absence of legislation it would be unenforceable. His submission was that in the interim, the 0.2 percent per volume be proposed. The other legislation for hemp, could at a later stage, amend it.

Mr Horn agreed that that the Bill should provide an interim measure. Whoever dealt with the commercialisation legislation obviously would be entitled to amend the Act, once passed, to what might be the most suitable level for commercial purposes.

The Chairperson asked if the percentages should be contained in legislation or regulations, as it would be easier to change if it was contained in regulations.

Ms Maseko-Jele stated that it was difficult to deal with the issue of percentages when one was not a medical professional. It should be contained in regulations so that it could be amended at a later time.

The Chairperson lost connection.

Concentration of THC in contravention of clause 6(v)
Adv Robbertse stated that clause 6(v) criminalised a person who administered cannabis to a child. It amounted to a Class A offence. One needed to take into account the previous submissions made by the Rastafarian community, that cannabis in certain circumstances was used as a medicine. On the other hand, THC was regulated by the Medicines and Related Substances Act, which categorised it as schedule 6 substance. This meant it needed to be prescribed by a medical practitioner or other authorised person. It could only be prescribed for a 30-day period. Two options were proposed, the first being 0.05 percent THC, the second was 0.01 percent THC. Those were the two options that needed to be considered.

[Mr R Dyantyi (ANC) chaired the meeting in the Chairperson’s absence]

Mr Dyantyi asked if there were any proposals on that.

Mr Horn stated that given the fact that the medicinal purposes were already otherwise regulated, the Bill should, in the interest of protecting children, be conservative on this. He was interested to know what other Members’ views were.

Ms Maseko-Jele asked what the impact of choosing the other option would be.

Adv Robbertse stated that it could only be prescribed or administered to children for medicinal purposes. The levels of THC related to any product given to a child, irrespective of being for medicinal or other purposes, if it exceeded the amount it would be criminalised. There were various offences that existed that gave the National Prosecuting Authority (NPA) additional ammunition to prosecute a person. If it was administered contrary to the Medicines and Related Substance Act, the penalty imposed was up to ten years. In terms of the Bill, it was a class A offence and the person could be sentenced to imprisonment for a period of up to 15 years.

Definition of ‘Commercial Activity’
Adv Robbertse stated that this provision had been explained previously. The purpose was to clarify the definition of a trafficable quantity. He did not think there were any objections to this. In its amended form, it provided that a person who did anything with a commercial quantity, as prescribed in the schedule, would have committed an offence. The definition of ‘trafficable quantity’ had been amended to reflect that anything that was less than a commercial quantity would constitute such an offence.

Definition of ‘Fresh Cannabis’ and ‘Immature Cannabis Plant’
Adv Robbertse stated that ‘leaves’ had been excluded from the definition of ‘cannabis.’ It made sense to also exclude leaves in the case of ‘fresh cannabis’ and ‘Cannabis Plant.’ Measures were proposed to determine what an ‘immature cannabis plant’ should be defined as. This was removed in accordance with the public submissions received. Anything other than a seedling, that was not a flowering cannabis plant, would be considered an ‘immature cannabis plant.’ He had previously proposed criteria to determine what a ‘seedling’ was. There were different variants of cannabis that varied in size – thus the definition needed to take this into account. The main issue was that it needed to be non-flowering.

Definition of Smoke
He noted that the definition of ‘smoke’ had been discussed previously, wherein vaping devices were discussed and it was proposed that vaping devices be included in respect of cannabis vapour or aerosol.

Sub-clause 2 of the Bill
Sub-clause 2 of the Bill provided that the Bill did not apply to persons who were authorised in terms of other legislation to deal with cannabis or cultivate cannabis plants etc. The new clause, about commercial activities, was proposed in addition to sub-clause 2. He proposed that sub-clause 2 be left in place. There were other regulatory measures in place that authorised a person to deal in cannabis plants etc.

Commercial Activities in respect of Recreational Cannabis
The big issue was around commercial activities which included recreational cannabis – he proposed a new clause option on this. Comments suggested that it should not be imposed by way of first legislation obligations on other legislation, to regulate conduct that was in a portfolio of another department or portfolio committee etc. Mr Horn had raised objections against certain criteria for the authorisation of licenses that had been proposed in terms of this option. Opinion was requested about this and the effect of tagging the Bill and its procedural implications. He suggested this matter be left open for discussion at a later stage.

Special Measures to accommodate Cultural or Religious Communities
Consultations had taken place with the Rastafarian community, amongst others, about an exemption from some of the provisions of cultural or religious activities. There were some challenges, specifically about the criteria that needed to be taken into account to grant such an exemption. He had considered all the Rastafarian inputs the day before. The requirements for this still needed to be developed. This was a work in progress, and could likely only be dealt with at a later stage. He would try to finalise this as quickly as possible. He did not want this to only be outlined in regulations. It should be dealt with in primary legislation.

In a previous meeting, Adv S Swart (ACDP) had referred to cultural and religious communities that needed to be included, specifically in as far as it related to consultation and advice that needed to be provided. It had been amended to that effect.

The Minister needed to submit the application together with the recommendation to the Commission. Under this provision it was included that there needed to be consultation with the responsible Member of the Executive Council (MEC), wherein anything was affected by the clause. Cultural matters were considered joint national and provincial matters. If an exemption was granted in terms of the Bill, it might influence future commercialisation. It was submitted that a Cabinet member of Trade and Industry to be consulted. The Minister should be consulted by any other Cabinet Member about the application to make certain recommendations.

There was an issue raised the day before that Parliament should not be burdened with administrative issues that should be dealt with by the Executive. He had referred to regulations for notices that needed to be approved by Parliament, before being published in a gazette. There were other provisions that provided that certain certificates or exemptions first be approved by Parliament before being published. There was legislation that dealt with water, where certain declarations needed to be submitted to Parliament for approval before being published by the relevant Cabinet member. The provision had been amended or redrafted. Any permit that the Minister might want to issue needed to be tabled before Parliament. Parliament could decide to consider such subordinate legislation tabled in Parliament. The Bill specifically provided that Parliament may, when a certificate or permit was tabled, reject such permit within a specified period of 60 days. The Minister may, after expiry of the 60 day period, if not rejected, publish this in the gazette. The Minister could consider the withdrawal, termination or amendment of a permit and publish such withdrawal, termination or amendment in the gazette and further provide for the opportunity of affected parties to be heard on the issue. The Minister needed to consider representations thereon. After that, if he considered it necessary, he could terminate, withdraw or amend it. The major issue was to provide for the criteria for an exemption. 

Mr Horn addressed the last part, where there was an obligation on the Minister to table before Parliament. A mere obligation on the Minister to table it in Parliament, did not necessarily give Parliament any other authority than to discuss and express an opinion. Was that the intention? If a permit could be rejected in 60 days, what was the function that the Minister performed when the permit was issued? If that was an administrative function, then it may be unconstitutional to give Parliament the authority to reject it. Did Adv Robbertse have advice on the function of the Minister. ‘Administrative function’ by definition was viewable by the courts. In terms of the principle of separation powers, it could be acceptable that Parliament was the review body.

Adv Robbertse responded to the matter of the issuing of permits. The Minister needed to first exercise his discretion – if it should or should not be issued. If the Minister thought it should be issued after the other parties had been consulted, it gave Parliament an option to intervene in the matter. It was correct, that it was an administrative function, to the extent that the Minister exercised discretion and his decision was reviewable by Parliament, in that Parliament could reject it. The Promotion of Administrative Justice Act was applicable in this case. There was provision, that where the Minister was not satisfied that a permit be issued, it may be rejected and not come to Parliament. There was a process prescribed in the Bill to deal with that. The Minister’s discretion was subject to parliamentary oversight. Parliament may consider the rejection, termination or amendment of it. It was an administrative function, subject to review by the High Court and the Promotion of Administrative Justice Act. The involvement of Parliament was necessary.

Mr Horn asked that in the further development of the proposal – the Committee be afforded examples of where Parliament already performed similar functions. From a constitutional perspective, the duties and functions of Parliament, only went as far as oversight. He was worried that any provision that afforded Parliament a review obligation, rather than a review opportunity of administrative functions performed by the Executive, might not pass constitutional muster. He asked if this could be looked at by both Adv Robbertse and Dr Barbara Loots from Parliament’s Constitutional and Legal Services Office. 

Prescribe quantities for personal use by adult persons
Adv Robbertse stated that there were insertions to clarify the use of cannabis between adult persons. There was a proposed amendment that for certain persons who suffered from illness and tended to self-medicate one needed to be able to obtain a certificate to authorise cultivation, possession and sourcing of quantities of cannabis plants in excess of the personal use quantities. He had previously asked if it should be provided on a limited scale. Commercial activities would be provided for between a person with a medical condition and any adult person providing product. He had not received a clear answer on that yet– it was a matter left open to amendment.

Ms Maseko-Jele asked a question about the matter of the certificate – would the certificate have an expiry date or was it subject to renewal? What was Adv Sarel Robbertse’s view on that. Many people in general experienced problems when renewing certificates and/or licenses. Those certificates would speak to the quantity that could be possessed.

Adv Robbertse stated that the certificate did not provide for a certain timeframe. Obviously, in a case where there were instances of cancer for example, there was no need to prescribe a certain certificate validity period. He proposed that if a person wanted to self-medicate and was terminally ill – it was not necessary for a psychiatrist or doctor to prescribe a specific quantity. However, in respect of other conditions, there may be a valid argument that an authorised person needed to prescribe the quantities. There were prescribed quantities contained in the Bill, as long a person did not exceed the prescribed quantities, there was no need to provide for that.

Cultivation offences
Adv Robbertse stated that the amendments dealt with the downgrading of certain offences. There was a possibility that some of the offences could be further downgraded. He indicated an amendment to circumstances under which, and to what extent, one needed to ensure that cannabis plants were inaccessible to a child. There was an amendment proposing that the distribution be limited to that of immature cannabis plants. The offences might need to be reconsidered on that.

Ms Maseko-Jele stated that when the Department came back – she asked that the issue of the offences be looked into. She was specifically thinking of those that would be subject to a term in jail, as the overcrowding issue might be exacerbated. She suggested the Committee reconsider this at a later stage in proposing lighter terms.

Adv Robbertse responded to state that the problem was that South Africa’s criminal law was quite rigid. In other countries there were ticketable offences, or offences that only resulted in fines to be imposed without imprisonment. This could be addressed in the Criminal Procedure Act and not in the Bill. He agreed with Ms Maseko-Jele that the offences be reconsidered. One needed to remember that the offences prescribed in the Bill were mainly of an administrative nature, it was only in circumstances where it involved a child or could cause harm that imprisonment be imposed. It could be considered in the future.

Smoking and Consumption Offences
Adv Robbertse said he had provided for Ms Maseko-Jele’s previous concern regarding smoking in public places, and the impact on children specifically. There were provisions in the South African Schools Act that effectively dealt with smoking and consumption of cannabis in schools.

Ms Maseko-Jele stated that she was happy with the proposal being covered in other laws.

Adv Sarel Robbertse clarified further about the possession and use of cannabis by a scholar. The matter was currently sub judice – the South African Schools Act provided for the confiscation of cannabis.

Offences involving a child
Adv Sarel Robbertse stated that there was one amendment that needed to be dealt with in relation to offences involving a child. There had been a mistake in drafting, this was previously explained to the Committee.

Adv Robbertse informed Members that he had previously suggested that there be lesser penalties for certain offences. There were certain offences that prescribed that one needed to go to jail for a period of 15 years, he had proposed a less severe sentencing option. This could be further revised for some of the prohibited conduct contained in the Bill. A number of the offences had been downgraded.

Ms Maseko-Jele asked if fines could be proposed instead of jail time. In the Consumer Protection Act, those that contravened the law were not usually taken to jail. Huge fines were charged to those that contravened the law. She asked if this could be considered.

Adv Robbertse stated that the clauses did provide for a fine or imprisonment or both. In terms of the Consumer Protection Act or commercial legislation, fines were charged. This was because such crimes largely involved companies– one could not send a company to jail. A fine was more enforceable against a legal persona. The Bill dealt with natural personas (ordinary people). The imprisonment prescribed was not compulsory, it was usually an alternative enforcement mechanism to ensure that fines were paid. Court would not readily send a person to jail in most instances except if there was a serious offence or continued offences. He had stated previously that other countries provided for ticketable offences or where a fine was imposed. There were provisions in the Criminal Procedure Act that recoveries could take place through civil proceedings – in this instance it could work. One needed to always consider the burden it imposed on the administration of the act, once passed. One needed imprisonment as an enforcement mechanism.

Schedule 4 Amendments
Adv Robbertse went briefly through the schedule 4 amendments. The possession of cannabis plants in public and private places would be restricted to immature cannabis plants. The trafficable and commercial amounts were increased to provide for a gated margin – he indicated that this had been discussed previously.

Mr Dyantyi Chairperson thanked Adv Sarel Robbertse.

Adv Robbertse indicated that he would likely not be available from 16 March 2022 to 6 April 2022.

Mr Horn asked if all the advice the Committee had requested would have been sourced by 15 March 2022, when another meeting could be held.

Ms Maseko-Jele supported the view of Mr Horn.

Adv Breytenbach stated that she had some issues she wanted to raise with Adv Robbertse, but she would do so offline. She suggested that it be confirmed if he could be ready by Tuesday 15 March 2022. Alternatively, the Committee could continue when he got back.

Dr Barbara Loots, Parliamentary Legal Advisor, stated that she had held brief discussions with her seniors; a detailed discussion had not yet taken place on the version seen the day before. The version seen the day before had subsequently changed. Parliamentary Legal Services was playing ‘catch-up the whole time,’ which was a bit problematic.

She had compared the Bill as it was tabled, to what was presented in the meeting. One of the questions the Committee had asked Parliamentary Legal Services to address was around public participation. This was a concern, given how broad the Bill was at the moment, in dealing with percentages, commercialisation, permits and offences etc. She would need time to sit and establish if the Bill should go back for public consideration/participation, by reviewing the constitutional court cases that were provided as guidelines. Her gut feeling was that it should, because it was much broader than the Bill’s initial purpose, when read in line with the Prince Judgement.

She asked the Committee to give her the mandate to work with Adv Robbertse, so that when amendments came to the Committee, she had already seen them, and she could address constitutional concerns about the separation of powers and commercialisation. This would allow her to canvas the issues and engage with Adv Robbertse on the matters while the amendments took place and present it to the Committee. If it went for public participation – there would need to be a revised draft to put to the public for comment. General concepts could not be put to the public – there needed to be a final version that the Committee had drafted to address certain things. She asked for clarity if the Committee wanted Parliamentary Legal Services’ opinions on only some of the issues or to work with the Department and only bring matters to the Committee that could not be resolved in this way. 

Adv Robbertse replied that it would be fine to work with Dr Loots on some of the issues. Drafting was a process, nothing was perfect. Every time one looked at the Bill, one found another way to deal with the matter. It would be better to coordinate on some of the issues.

Ms Maseko-Jele asked that the Chairperson speak to the issue of public participation in line with what was done when the process started – to respond to what Dr Loots had spoken about.

The Chairperson stated that he had only heard Ms Barbara Loots towards the end and could only comment on what he had heard. He agreed that Dr Loots and Adv Robbertse should work together so that the Bill did not suffer procedural fatalities. In light of the pending leave of Adv Robbertse, he asked that the programme be finalised in such a manner that other issues be shifted to prioritise this, otherwise the Bill would only be finalised in the following term. The Bill needed to go through the National Assembly processes by 1 April 2022. The programme needed to be redrafted to accommodate this.

He asked Mr Dyantyi conclude the meeting

Closing remarks
Mr Dyantyi stated that the Committee was asking Adv Robbertse and Dr Loots to work on this and see where it could get to. The Chairperson would be in-touch with them to see how the scheduling could be arranged for the following week.

The meeting was adjourned.



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