Cannabis for Private Purposes Bill: deliberations

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Justice and Correctional Services

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

In this virtual meeting, a Parliamentary Legal Advisor and a Senior State Law Advisor briefed the Committee on a meeting of the technical team to discuss how best to manage the issues that had been previously highlighted by the Committee in relation to the Cannabis for Private Purposes Bill.

Members were informed that the technical team had identified three areas that needed to be looked at. Clauses were being crafted in respect of commercialisation, religious exceptions and cannabis for medicinal purposes.

The technical team had also considered several issues emanating from a revised bill: these included tagging, if House permission was needed to add a new clause and public participation.

The Committee was advised that if a Committee wanted to add clauses that broadens that scope then procedurally House permission was required.

Further, it was recommended that in order to fulfil all the Constitutional requirements and giving the public as much participation as possible, the Committee must publish the revised Bill for a quick second round of public comments.

The Committee discussed whether commercialisation should be captured in this Bill or a separate bill where it can be dealt with in a comprehensive way. There was a view that a Department with the necessary expertise was needed to research and develop a proper Bill that would balance the many competing interests in that space

Noting that the technical team was still working on the text, the Committee agreed to meet next Tuesday to consider the re-drafted clauses. Once approved, the next processes will kick in such as tagging, permission from the House and publishing for comment.

The Committee resolved to allow for limited public participation once the revised Bill had been finalised. In the advertisement it would say that the Committee would make a final decision on whether oral submissions will take place based on the content of written submissions.

Meeting report

The Chairperson welcomed the members and all those in attendance to the meeting. The Chairperson asked the Parliamentary Legal Advisor to take the Committee through the decisions it took last week about the process.

Parliamentary Legal Advisor Input

Dr Barbara Loots, Parliamentary Legal Advisor, Constitutional and Legal Services Office, said that per the Committee’s instructions there was a technical meeting last Thursday. The Committee support staff, and legal advisors met and discussed how best to manage the issues that were highlighted by the Committee. The Committee had highlighted the new clauses that were up for discussion, the ones on commercialisation and exemption. During that discussion the Committee looked at the newer clauses that came in. Concerns were raised about the tagging. Would House permission be needed? What level of public participation would be required? The legal teams considered all of these concerns. The legal teams also looked at whether the Committee was overstepping its mandate when it came to one Department telling another Department how to regulate their legislation. Concerns around the separation of powers were raised. The legal teams looked at those clauses and tried to identify if those clauses could be re-crafted to eliminate risks with regards to separation of powers or taking something from a 75 to a 76 tagging. After the discussion, Adv Robbertse indicated that he had some ideas and that he was working on them. Because the technical team sat on Thursday, that had only given him two working days. The team was still in the process of getting a product resulting from that technical discussion.

She highlighted what would happen if the revised product came to the Committee and the Committee felt that there were areas that needed to be included that would take it to a JTM re-tagging. If it was taken from a 75 to a 76 then it would impact on the Committee’s process. It would impact on the NCOP process. Even if that scenario arose nothing was going to greatly influence the Committee. The Committee would have to write to the JTM. The Committee would have to request them, in terms of the rules, to look at the proposed changes and re-tag the bill. That would be a procedural option that would be open to the Committee.

She discussed House permission. Was House permission on a Bill required if a Committee went outside the scope of the Bill as tabled? The Bill was referred to the Committee. The Bill had a certain purpose and scope. If a Committee wanted to add clauses that broadens that scope then procedurally House permission was required. That was not an onerous process. It would include the Committee submitting an interim report to the House saying that following public participation it had identified ‘xyz’ as issues that needed to be incorporated. That House permission would depend on how broad the new clauses were phrased. That would depend on the scope of the clause on commercialisation and religious exemptions. The Committee could approve the clause depending on how wide the scope was and whether the clause took the Committee outside the original purpose of the Bill. It would be a quick process to get House permission.

Another item that formed part of the discussion was public participation. She discussed how the Committee should avoid lengthening the entire process and incurring any challenges with regards to public participation. The Committee was considering things like the THC percentages which was not originally in the Bill that was put to the public. To ensure that the Committee was fulfilling all the Constitutional requirements and giving the public as much participation as possible, the legal teams advised that the Committee publish the revised Bill for a quick second round of public comments. This would be to ensure that the Committee did not miss anything. It might be just two weeks extra that the Committee did not anticipate. It should rather be two weeks in this process than a year because of litigation. Those were the things that the legal teams had weighed up. It was also asked if it was enough that the NCOP also had a public participation process. The answer to that was no. The Constitutional Court made it very clear that every House was to facilitate their public participation process to its fullest competency. One House could not rely on what the other House did or was going to do, to meet its Constitutional benchmarks. The Committee had to make sure that it had done everything it could to meet all the Constitutional benchmarks in this process before it handed over the baton to the NCOP.

The legal teams had identified the issues and were trying to craft clauses with regards to commercialisation, religious exceptions and all those issues, in order to streamline the product that would be before the Committee. If the Committee approved of the new proposals, then that would be put to public comment just for a quick second phase; it cleans up any uncertainties in process. She noted that Adv Robbertse was working on the clauses and that he would go on leave on 16 March. The technical team would use whatever he handed over to them and do its best to procedurally manage and assist the Committee to ensure that the Bill did not stand still and that things were still happening.

Department Legal Advisor Input

Adv Sarel Robbertse, Senior State Law Advisor, Department of Justice and Constitutional Development, said that Dr Loots had given a good explanation of what took place during the technical meeting. He discussed the clause on commercialisation. A possible option that was discussed was to merely retain subclauses 1, 2 and 4 of the new clauses. That would provide for commercialisation to be authorised in terms of national legislation. The re-drafted version of that clause omitted subclause 3 which actually instructed other Departments to draft legislation that complied to those criteria. That was being removed from the commercialisation clause. The new re-drafted clause authorised commercialisation subject to national legislation and left it at that.

He discussed cultural and religious exemption. It was quite problematic from a drafting perspective. He had gone through the current reasons from the statute books that granted a so-called religious exemption. There were four clauses on the statue book that dealt with that. It was mainly in relation to the slaughtering of certain livestock where a certain religion was involved. However, it did not specify any criteria and what it had to comply with. It just exempted those kinds of practices from certain limitations that was specified otherwise in that legislation. He noted the overseas legislation that was taken into account. He looked at the USA, New Zealand and Australia. There were limited religious exemptions that were recognised overseas. It did not specify any criteria. The only real religious exemption that he could find was in the West Indian legislation. It granted an exemption in adherence of the Rastafarian community in respect of the cultivation of cannabis plants. It did not specify any criteria except that it limited it to Rastafarian communities. In terms of that legislation, their Minister of Justice may grant such an exemption that was subject to certain regulations or order that may be published in their government gazette. The re-drafted clause will probably follow the West Indian legislation.

He discussed the use of cannabis for medicinal purposes. That had been recognised in various countries, an exemption for persons who wanted to use cannabis for medicinal purposes. The new clause would be drafted in line with that. Those were the main three provisions that were discussed during the technical meeting.

Discussion

Ms N Maseko-Jele (ANC) said that she wanted clarity. One of the issues she had raised last week was on sentences. Did the Department look into that matter in line with the principle that the Committee had agreed upon of also using the tobacco law? She had raised that she was not comfortable with those sentences. If it was in line with what was happening in the tobacco law then she would rest her case. She wanted to know if the Department checked up on that issue.

Mr W Horn (DA) thanked the legal teams for the feedback. On the face it seemed considered feedback. There was one thing not clear to him. Dr Loots spoke about a limited opportunity for further public participation. Was that the advice also in respect of the draft provisions around commercialisation of the cannabis industry? He did not think that it would suffice to subject that specific draft provision to a limited opportunity for public participation. The difficulty the Committee sat with was that it was inundated during the period of public participation with requests, pleas and demands and even threats that Government should embark on commercialisation. It was a priority for Government as expressed by the President during SONA. Was the Committee going to receive briefings from the DTI? Was the advice that that specific draft provision could pass muster if the Committee gave it a two or three-week opportunity for written comments alone?

The Chairperson asked what value would a new clause of three or four paragraphs really serve for commercialisation? Should the Committee maybe consider the option, through the report to Parliament, to state that there was an urgent need to have a comprehensive Bill by the relevant Department on commercialisation? Maybe Parliament could demand, through a resolution of the House, to have regular updates through the relevant Portfolio Committee. There needed to be a Bill that would cover commercialisation in its entirety, not something that empowers and was subject to national legislation that would have to be drafted by another Department. What would be the value of that? Why did the Committee not ensure that through its oversight function as Parliament that it pushed the executive to look at this Bill in a comprehensive manner? The issues relating to cannabis were highly technical and highly involved. A Department with the necessary expertise was needed to research and develop a proper Bill that would balance the many competing interests in that space.

Mr Horn said that he shared the Chairperson’s sentiment. This Committee held a specific skillset around law making. That did not necessarily mean that the Committee was able to deal - in a comprehensive way - with legislation around commercialisation. In his view, the Committee might be missing something. Would this Committee then have joint meetings with the Portfolio Committee on Trade and Industry? It opened up a myriad of possible knock-on issues. The Chairperson’s alternative view was a sound view. The challenge would be for Parliament to deal with this Bill in a speedy manner and show that it was not disrespecting the dire need out there for jobs and the formalisation of the commercial cannabis industry. It already existed even though it was not regulated and lawful. That was the Committee’s big challenge. He agreed with the Chairperson that for the Committee to go into this in a haphazard way might have some serious unintended consequences which the Committee could not foresee.

Adv S Swart (ACDP) appreciated the input and that there would be public participation. He appreciated the concerns about the tagging. That could be remedied with a quick resolution through Parliament. He noted that the last item raised did open up a myriad of issues. He noted that commercialisation did not only refer to the controversial THC element but also to CBD medicinal, industrial hemp. It was a very broad issue. When the Committee started this process, it had received inputs from all different Departments. It was something for the Committee to deliberate about. The position of the ACDP was very clear on the recreational use of cannabis and THC. The ACDP was more open on the side of CBD medicinal, industrial hemp uses. It was important that the Committee produced a report to Parliament, bringing in all the other elements as this impacted on other Departments. He wanted to get an idea of timeframes that would be required should the Committee follow a narrower approach, which might not necessarily be the best? When the Committee invited public input, it might receive input on the commercialisation aspect as well.

Adv Robbertse responded to Ms Maseko-Jele’s questions whether it was considered that cannabis be dealt with similar to tobacco. He had indicated in the previous meeting that it was recommended that cannabis be dealt with on the same basis as alcohol. That the penalties that applied to alcohol also be applied to cannabis. He discussed clause 5 of the Bill. There were various provisions that aimed to regulate or limit the smoking or consumption of cannabis. That was in line with the tobacco legislation, which ensured that other persons were not harmed by the smoking or consumption of cannabis. He believed that clause 5 addressed the hindrance aspect of the use of cannabis on the same basis as that of the tobacco legislation.

He discussed the revision of the sentences. In the re-drafted clauses of the Bill, in clause 7, there was a second option that was previously discussed which halved most of the original penalties that were proposed. A third option would be proposed which further reduced the penalties that may be imposed for certain contraventions of the Act.

He discussed the commercialisation clause and how it should be taken forward. He believed that if there was real legislation that dealt with the commercialisation of cannabis then this Bill was not necessary. All the provisions of this Bill could be included in such legislation. However, the Department was giving effect to a Constitutional Court judgement. The Department of Justice believed that that it be regulated so far as it was possible.

He discussed South Africa’s obligations in terms of the drug control treaties. South Africa was prohibited from commercial aspects in relation to cannabis. In an opinion, he stated that there were limited exemptions or arguments that could at least be applied to justify why South Africa followed the commercialisation route. In that opinion, he had indicated at least two aspects. The one was that it could be argued on a Constitutional basis that cannabis ought to be legalised. The other aspect which needed to be considered was in the legislation of all other countries that followed the commercialisation route which was to provide that commercialisation was specifically to implement harm reduction measures. Those were the two legal arguments that could be used against the contravention of South Africa’s international obligations. The Drugs and Drug Trafficking Act is legalisation that was administered by the Cabinet member responsible for Justice. The commercialisation clause that was included in the Bill formerly recognised commercialisation but that it was subject to other legislation. If there was going to be a Bill on commercialisation then the other relevant Departments, with the expertise, needed to take that forward.

He discussed the comments that were raised by Adv Swart that there was a trade in certain products relating to cannabis, CBD oil and hemp. That was actually regulated. CBD oil could be sold but that was subject to the Medicines Act, and it could only be sold if it complied with the standards and requirements that were set out in the Medicines Act. The Medicines Act was also currently used for commercialisation of hemp. However, it was preferrable that comprehensive legislation was needed to regulate hemp.

The Chairperson asked the members if there were any further comments? There were none.

The Chairperson asked Adv Robbertse how soon he could finalise the work that the Committee had asked him to do because the next day was his last day.

Adv Robbertse responded that he was three quarters through the work. The big issue was the religious exemption that might take some time. He would give a final draft of the Bill to Dr Loots no later than Friday. He was also dealing with a medical condition which he needed to take care of. He would try and have it ready by Friday or at the latest, next Monday.

The Chairperson said that this was where the Committee was now. It was clear from what was received from the technical team that space needed to be opened up for public comments. It was difficult to be certain when the Committee did not have the actual Bill before it. There was also a possibility of having to refer this matter to a joint meeting mechanism. It was important for the Committee to have the text. The suggestion was that the Committee use the break to invite public comments. He asked for the members to provide direction on those issues. It would have been easier if the Committee had a text before it but those were issues which were beyond the control of Adv Robbertse. He had not yet finished the re-drafting. The drafting of this Bill was not easy. It took the members time to understand everything. The Committee was trying to hurry slowly. He asked members what their proposals were in moving forward?

Mr R Dyantyi (ANC) said that having listened to Adv Robbertse, was it not possible for the Committee to attend to the text next week? If Adv Robbertse was able to conclude on Friday or Monday, then the Committee next week Wednesday could consider the Bill. After that, the Committee could use the break to allow for limited public participation and commentary. Without putting pressure on Adv Robbertse, the Committee could use next week to finalise the text and then from there launch other processes.

The Chairperson suggested that the Committee Secretary display the Committee programme for the remainder of the first term so that the Committee could agree on a date. The first term programme of the Committee was displayed. The Committee deliberated and decided to deal with the responses on the Land Bill when it came back from the break. The Committee would prioritise the re-drafted Cannabis Bill for 22 March. On Tuesday Dr Loots would go through the Bill in the absence of Adv Robbertse.

The Committee agreed that it was in order.

The Chairperson said that the Committee would either use Tuesday or Wednesday. If the Committee used Tuesday, then it would be during a sitting. The Committee Secretariat would ask for the necessary permissions to sit. In the morning, the Committee would deal with the responses to the Land Court Bill and then in the afternoon it would deal with the Cannabis Bill. After that, the revised Bill would be published for public comments. The other issue the Committee needed to deal with was the stakeholders. Some of them would want to make oral submissions. Would the Committee only allow written submissions and no oral submissions? Or should the Committee just advertise for public comment and if there was a need for oral submission then it would be amenable? It was a decision that the Committee needed to make.

Mr Horn said that the Committee should not close the door on oral submissions. The Committee should form a provisional view that it wanted to perform public participation based on written submissions. However, there might be a situation where based on what was submitted in writing that the Committee felt it important to invite one or two institutions to unpack their views further. In the advertisement it could say that the Committee would make a final decision on whether oral submissions were allowed based on the content of written submissions.

The Chairperson and the Committee agreed with that view. The Committee was possibly going to meet on Tuesday. If there was any hinderance, the Committee Secretariat would communicate with the members and then try and use Wednesday. For now, the Committee was meeting on Tuesday, and it would be dealing with the Land Court Bill. Thereafter, it would deal with the Cannabis Bill.

The Chairperson asked Adv Robbertse how long he thought it would take the Committee on Tuesday?

Adv Robbertse said that if it was only a discussion on the three clauses then it would take less than 45 minutes. The clauses had already been discussed. The members just had to give their approval on the proposed amendments.

Consideration of the draft minutes of the Portfolio Committee on Justice and Correctional Services dated 3 December 2021

Mr Dyantyi moved for the adoption of the minutes.

Mr Horn seconded the adoption of the minutes.

The minutes dated 3 December 2021 was adopted.

Consideration of the draft minutes of the Portfolio Committee on Justice and Correctional Services dated 8 December 2021

Mr X Nqola (ANC) moved for the adoption the minutes.

Ms Maseko-Jele seconded the adoption of the minutes.

The minutes dated 8 December 2021 was adopted.

Consideration of the draft minutes of the Portfolio Committee on Justice and Correctional Services dated 15 February 2022

Ms Maseko-Jele moved for the adoption the minutes.

Adv G Breytenbach (DA) seconded the adoption of the minutes.

The minutes dated 15 February 2022 was adopted.

Consideration of the draft minutes of the Portfolio Committee on Justice and Correctional Services dated 16 February 2022

Mr Dyantyi moved for the adoption the minutes.

Ms Maseko-Jele seconded the adoption of the minutes.

The minutes dated 16 February 2022 was adopted.

Consideration of the draft minutes of the Portfolio Committee on Justice and Correctional Services dated 22 February 2022

Mr J Engelbrecht (DA) moved for the adoption of the minutes.

Ms Maseko-Jele seconded the adoption of the minutes.

The minutes dated 22 February 2022 was adopted.

Consideration of the draft minutes of the Portfolio Committee on Justice and Correctional Services dated 23 February 2022

Mr Horn moved for the adoption the minutes.

Adv Breytenbach seconded the adoption of the minutes.

The minutes dated 23 February 2022 was adopted.

Consideration of the draft minutes of the Portfolio Committee on Justice and Correctional Services dated 1 March 2022

Ms Maseko-Jele moved for the adoption the minutes.

Mr Nqola seconded the adoption of the minutes.

The minutes dated 1 March 2022 was adopted.

Consideration of the draft minutes of the Portfolio Committee on Justice and Correctional Services dated 2 March 2022

Ms Maseko-Jele moved for the adoption of the minutes.

Mr Nqola seconded the adoption of the minutes.

The minutes dated 2 March 2022 was adopted.

Consideration of the draft minutes of the Portfolio Committee on Justice and Correctional Services dated 8 March 2022

Mr Dyantyi moved for the adoption of the minutes.

Mr Nqola seconded the adoption of the minutes.

The minutes dated 8 March 2022 was adopted.

Consideration of the draft minutes of the Portfolio Committee on Justice and Correctional Services dated 9 March 2022

Mr Nqola moved for the adoption of the minutes.

Mr Dyantyi seconded the adoption of the minutes.

The minutes dated 9 March 2022 was adopted.

The Chairperson said that one of the issues that the Committee need to prioritise after recess was the report on the oversight visits. It was important for the Committee to finalise that report because it needed to go to the House as soon as possible.

The Chairperson informed members he had spoken to the Mpumalanga Judge President of who was excited about progress that had been made in the Middleburg local division. In Middleburg, there were issues around security fencing and other issues. Those issues were being attended to. There was slow progress that was happening in Mbombela. It was important that where the Committee went to do oversight visits that it kept contact to check whether the things that were promised to be done were done. The Committee needed to have dynamic interaction with all the areas that it had visited so that they knew that the Committee was serious about attending to issues. It was pleasing to hear that in the Middleburg some progress had been made.

Ms Maseko-Jele said that somewhere in the Committee’s programme it looked like there was a day where the Minister and the DG would be coming to report about some of those things. Was it possible that in the report the Department reported on those other issues where there was slowness?

The Chairperson said that the meeting on Wednesday was specifically on one issue. That was the issue of the recordings. The Committee was still going to schedule a meeting that was going to include Justice and Public Works when it was done with the report. For now, the Committee would be dealing with one specific issue which was the issue of the recordings. Many Magistrates’ Courts were complaining about that. It was an issue that needed urgent attention. Once the Committee dealt with the report to its satisfaction, it would action those meetings. Various people that were given tasks, including the Department of Public Works and Infrastructure and the Department of Justice, would have to come and account for those issues. The Office of the Chief Justice would also have to report back to the Committee. The Committee would deal with that. For the next meeting, the Committee would only be focusing on the recording device contracts that were not renewed on time. As a result, there were no transcripts and court proceedings were not recorded.

The Chairperson thanked all those in attendance. Next Tuesday afternoon, Dr Loots would take the Committee through the Bill.

The meeting was adjourned.

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