Cannabis for Private Purposes Bill: deliberations & Interim report requesting permission from House to expand scope

Meeting report

The Chairperson noted that there was a plenary sitting of the house in two hours. He suggested that, if necessary, Members should join the plenary, when it began, on separate devices. It was important to conclude the Cannabis for Private Purposes Bill in the current meeting, so that it could be published for another round of public comment during the parliamentary recess.

Ms N Maseko-Jele (ANC) agreed.

Cannabis for Private Purposes Bill [B19-2020]: amendments
Dr Barbara Loots, Parliamentary Legal Adviser, Constitutional and Legal Services Office, presented the Bill with the proposed amendments (see Working Document). She said that Members were already familiar with many of the technical amendments and exclusions, so she would attend only to the pertinent points that still required the Committee’s attention.

Long title

Dr Loots said that the Bill now additionally sought to provide for commercial, religious, and palliative uses of cannabis. The long title had therefore been amended and the Committee would require the permission of the House to extend the subject of the Bill. An interim report seeking this permission had been prepared, and the Committee could adopt it later in the meeting. 

Definition of “cannabis”

Dr Loots said that the THC threshold included in the definition of “cannabis” should not be seen as an arbitrary hindrance. Instead, it was a definition, specifying what fell inside or outside the scope of certain regulatory provisions in the Bill. She presented a new proposed definition of “cannabis”, Option 2 (see document). The definition increased the THC threshold from 0.2% to 2%, which would broaden the scope of private-use protection, in line with the Constitutional Court judgement. Option 2 also included substances concerned in offences contemplated elsewhere in the Bill.

Ms Maseko-Jele agreed with Option 2, and no Members expressed disagreement.

Definition of “immature cannabis plant”

Dr Loots said that Members were already familiar with the amendments to the definitions of “immature cannabis plant”, “seedling”, and “smoke.” She presented a new proposed definition, Option 2, for the definition of “THC” (see document). She also proposed defining “THCA” in a separate definition, rather than under the definition of THC. This option would be more accessible to readers who lacked scientific expertise, and was broader.

Ms Maseko-Jele agreed with Option 2, and no Members expressed disagreement.

Insertion of clause 1A: Commercial activities in respect of recreational cannabis

Dr Loots said that the new clause 1A authorised commercial activities in respect of recreational cannabis, subject to the enactment of national legislation. The aim was to ensure that the Bill did not obstruct the commercialisation of cannabis – primarily an imperative of policymakers in other departments – while also ensuring that the Bill complied with international agreements to which South Africa was party. The current version of the new clause had been simplified, and future legislation could expand as necessary.

Ms Maseko-Jele agreed with the proposal, and no Members expressed disagreement.

Insertion of clause 1B: Special measures to accommodate the Rastafarian faith

Dr Loots said that the new clause 1B was informed by consultation with representatives of the Rastafarian community. It permitted Rastafarian organisations to apply to the Minister for permits authorising cannabis-related activities for religious purposes. The clause outlined the application process, including various consultative steps – applications would not be considered in a vacuum. However, Members had previously been concerned that the permitting process would place certain obligations on Parliament and might thereby infringe on the separation of powers. To address this concern while maintaining parliamentary oversight, the current version of the clause provided that the Minister would table certain information in Parliament before publishing permits in the gazette. The clause was very extensive, primarily to allow room for the operation of the audi alteram partem principle. It could be refined or shortened after public input had been received.

Ms Maseko-Jele asked about the requirement that the Minister report to Parliament about the permits. What kinds of decisions would the Minister table in Parliament? At what point in the process would he consult Parliament?

Dr Loots replied that, under clause 1B(3)(c), the Minister would table copies of the permit, the application, and written reasons for his decisions – everything related to the permit applications. If the Committee wished, the Bill could specify the reporting interval – that is, specify when exactly the Minister had to report to Parliament. However, she thought that the Committee should wait to receive public inputs before deciding what the reporting interval should be.

Ms Maseko-Jele said that she was not exactly sure what question she was asking. Would any further legislation regulate the permit applications? Which applications would be brought before Parliament?

The Chairperson asked whether Ms Maseko-Jele was asking about clause 1B(3)(c).

Ms Maseko-Jele replied that she was.

Dr Loots said that the clause had emerged from public consultations. She thought that the next round of public submissions would guide its refinement. Currently, Parliament had identified the need for such a clause, but this provisional version had been drafted based on limited information. Once the public provided their input, Parliament would have a better idea of the clause’s likely impact, and could specify in detail the application requirements and the requirements for reporting to Parliament.

The Chairperson thought that clause 1B(3)(c) sounded “very odd.”

Dr Loots replied that the aim of the sub-clause was to ensure that Parliament regularly received information about the processing of permit applications. It could then interact with the department if it believed that there was something improper in the processing of permits or in the reasoning behind the Minister’s decisions. Previous versions of the Bill would have required Parliament itself to approve permits, but the Committee had been concerned that this would have brought Parliament into the administration of permits, and that it therefore might infringe on the separation of powers. The current version empowered Parliament to have oversight of the administration of permits, without placing direct administrative obligations on Parliament.

The Chairperson said that the sub-clause should be included in the published version of the Bill for now, but he thought it was odd. The Committee would have to discuss it at a later stage. Through that sub-clause, Parliament was unnecessarily taking on administrative burden. Once the Minister had tabled the relevant copies, Parliament would have to make a decision, so the Speaker would have to refer the copies to the Committee or to an ad hoc committee.

Ms Christine Silkstone, Committee Content Advisor, said that the Minister would be tabling the copies for Parliament’s information, not for its approval. Parliament would not have the power or obligation to approve the Minister’s decisions. It was perhaps necessary for the Committee to consider in further depth what role Parliament should have in the permitting process, if any, but that could be discussed at a later stage. The sub-clause could be removed or amended later if necessary, but if it was removed now, the public would not be able to comment on it. The feedback that the public provided on the sub-clause could assist the Committee in deciding what role Parliament should have.

Ms Maseko-Jele was satisfied with Ms Silkstone’s suggestion.

Dr Loots said that the clause would be included for publication.

Insertion of sub-clause 2(4)(a): Personal use by adult persons for palliation and self-medication

Dr Loots said that the new sub-clause 2(4)(a) allowed the use of cannabis for self-medication by adults who required palliation or who had a debilitating condition. It clarified that the Bill did not obstruct such use, while also providing a role for health professionals in authorising it.

Ms Maseko-Jele agreed with the sub-clause, and no Members expressed disagreement.

Clause 4: Cannabis offences

Dr Loots said that clause 4(6) had been extended to accommodate any further regulations which might develop in the future for the transportation of cannabis.

Ms Maseko-Jele agreed, and no Members expressed disagreement.

Clause 7: Penalties

Dr Loots said that, in a previous meeting, Ms Maseko-Jele had expressed concern about the penalties upon conviction for offences under the Bill. In addition to the version of clause 7 currently in the Bill, two other options had been drafted (see document). Members had already seen Option 1, but Option 2 further reduced the terms of imprisonment for each class of offence. Unfortunately, it was not feasible for the Bill to impose fines alone – the current system in South Africa required terms of imprisonment to be specified alongside any fines.

Ms Maseko-Jele said that she knew of women who were involved in the sale of cannabis, and she had been concerned that such people, if arrested and imprisoned, would be liable to imprisonment for up to fifteen years. Some of these women were single mothers with multiple children, and they sold cannabis in order to feed their families. She was satisfied with the more lenient sentences under Option 3. Parliament would also continue “sensitising” the courts to these issues. The government did not encourage people to break the law, but extenuating circumstances also had to be considered.

Clause 9: Regulations

Dr Loots said that the Committee had already discussed the other amendments to the Bill, which were mostly technical amendments. She thought that the only change which Members had not seen was the insertion of clause 9(4), which required the Minister to make regulations to prescribe the form and content of the certificates which health professionals would issue as part of the authorisation of the use of cannabis for palliation or self-medication.

Schedules

Dr Loots said that adjustments were proposed to various quantities in the Bill. It was therefore proposed that those adjustments should be reflected in the schedules, so that the public could provide feedback on the adjustments. She did not have the scientific background to explain why each specific quantity had been selected, but, in general terms, they had been adjusted to broaden the scope of the Bill’s private-use protections, and therefore to accommodate the Constitutional Court’s judgement.  

Ms Maseko-Jele said that like Dr Loots, Members were not qualified to debate the specific quantities outlined in the schedules. She was content with the proposal.

No Members expressed disagreement.

Interim Committee Report on the Cannabis for Private Purpose Bill
Dr Loots said that because the Committee had expanded the scope of the Bill, the Committee had to obtain House’s permission to proceed, and the new version of the Bill had to be published for public comment. The Committee, therefore, needed to adopt its interim report on the Bill. The interim report requested the House’s permission for the expansion in scope. 

The Chairperson asked whether the House had to provide permission before the Bill could be published for public comment.

Dr Loots replied that it did. However, if the Committee agreed, Parliament’s legal office could do the administrative work in the background to prepare for publication. It could then publish the Bill immediately after the House provided permission, without coming back to the Committee in between. The Bill as discussed in the current meeting would then be published.

The Chairperson asked whether it would be possible to adopt the report by the following week.

The Committee Secretary replied that it was a short report and had just been sent to Members. If Members agreed, the Committee could adopt it in the current meeting, alongside its report on the Child Justice Act regulations. The Committee was quorate.

The Chairperson agreed that the Committee should adopt the report. That way, it could go to the Programming Committee the next day, and could be presented to the House as soon as possible, probably the following week.

The Committee adjourned for a five-minute break so that Members could read the report.

Upon returning, the Committee considered its draft interim report on the Cannabis for Private Purposes Bill.

Ms Maseko-Jele was concerned about the last paragraph of the report, wherein the Committee requested the House’s permission to extend the subject of the Bill to include the use of cannabis for commercial purposes, for palliative or medical purposes, and for “religious purposes in adherence to the Rastafarian faith.” Other communities used cannabis for religious purposes, although they had not participated in the public hearings to the extent that the Rastafarian community had. Would this wording accommodate other, non-Rastafarian groups?

Ms Silkstone replied that this wording was taken almost directly from the amended long title of the Bill. The clause which had been added to the Bill about religious uses, clause 1B, dealt only with the Rastafarian faith, not with other religions.

The Chairperson asked whether this exclusive wording would not create challenges in the future.

Ms Silkstone replied that if necessary, and after receiving further public input, the Committee could later expand clause 1B to be more inclusive.

Dr Loots suggested that the interim report could refer to the use of cannabis “for religious purposes.” The qualification which followed – restricting the religious purposes to the Rastafarian faith only – could be removed. That would allow the Committee the option of later broadening the Bill to include religious groups other than the Rastafarian faith.

The Chairperson said that the Bill should also be changed if the interim report was changed because the paragraph of the interim report had been taken from the Bill.

Dr Loots replied that she did not think it was necessary to change the Bill. The provisions currently in the Bill would allow the Committee to gauge, through public submissions, whether there was a need to broaden the scope. Rastafarian organisations had already consulted with Parliament on the Bill, but, as Ms Maseko-Jele had said, other groups might come forward during the next stage of public participation. If that happened, the Bill could be broadened. What was important now was to obtain broad permission from the House. If the House provided permission for the Bill to deal with the use of cannabis for religious purposes per se, that would empower the Committee to pass either broad or narrow religious exemptions. But if the request for permission only mentioned the Rastafarian faith, the Bill could not later be extended to other religious groups.

The Chairperson suggested that it might be a good approach, in any case, to draft the Bill in a more inclusive way. Some groups might not have had the resources to approach Parliament about the earlier draft of the Bill.

Dr Loots said that the religious exemption provisions, in their current form, were the result of all the information that Parliament had received to date. The relevant provisions could be made more inclusive if the Committee wished, but Parliament’s legal office would, in that case, require extra time to re-draft those provisions. Thereafter, the Committee would need to meet again to deliberate on and approve the broader provisions before the Bill could be published.

Dr W Newhoudt-Druchen (ANC) said that the Rastafarian community had been a very strong presence in the public hearings. She agreed that there might be other groups that had not been represented in the hearings but who did use cannabis for religious purposes. The Committee could re-write the sentence in the report to include other groups, in addition to Rastafarian organisations.

The Chairperson said that the question was whether the Committee should change the Bill itself before publishing it for public comment. He asked Dr Loots whether it would be feasible to include indigenous communities as well as Rastafarian communities.

Dr Loots replied that it was certainly possible in principle, and at the Committee’s discretion. Indigenous communities had been included in previous versions, before the Committee had narrowed its focus down to religious exemptions. However, she was not sure how such an expansion would affect the administration and implementation of the Bill. She would have to consult with the department in that regard.

Ms Silkstone said that the purpose of the Committee’s interim report was to request the House’s permission to extend the subject of the Bill, in this case to include religious exemptions. The question at this stage was whether the Bill should also be made broader before publication. Dr Loots would have to indicate how that would affect the timeline for drafting the Bill. Alternatively, the Committee could publish the Bill in its current form, receive public submissions, and then possibly decide to extend the Bill after deliberating on the public submissions.

Ms Maseko-Jele said that the Bill was still a work-in-progress. The Committee had to extend the Bill. It was good that the Rastafarian organisations had participated vigorously, but the Committee did not want to serve Rastafarian organisations alone. The interim report should mention indigenous communities as well as Rastafarian communities, and the Committee should broaden the Bill accordingly before publishing it for public participation.

The Committee Secretary suggested that the Committee should ask for broad permission in the interim report – pertaining to all religious groups, not only Rastafarian groups – but should publish the Bill in its current form. That way, the Bill could later be expanded if other religious communities participated in the second stage of public submissions. It would be difficult to expand the Bill now, because other religious groups had not yet participated and therefore could not help guide the drafting process.

The Chairperson asked Dr Loots whether the Committee could include indigenous communities as well as Rastafarian communities.

Dr Loots replied that it would be preferable to include indigenous and religious communities, because that was broader. If the Committee wished to redraft the relevant provisions of the Bill, she would need to liaise with somebody from the department, to ensure that the redrafted provisions were implementable on the administrative side. She could return to the Committee with a new draft of the Bill next week.

The Chairperson said that the Bill was before Parliament – it was not the department’s Bill, and Parliament had to process it as it deemed fit.

Dr Loots agreed, but reminded the Chairperson that the religious exemptions were tied to the permitting process. Clause 1B was very detailed. She did not have direct knowledge of the administration of permits, so she was not sure how the permitting process should be expanded to include religious exemptions for groups other than Rastafarians.

The Chairperson asked whether any Members objected to amending the interim report to ask for permission to provide for the use of cannabis for religious purposes by other groups as well as by Rastafarian groups.

Ms Maseko-Jele agreed, and no Members expressed disagreement.

The Committee adopted the interim report with that amendment and other minor corrections.

Committee Report on Amendments to Regulations for approval in terms of section 97(2) of the Child Justice Act

The Committee also adopted its report on amendments to regulations for approval in terms of section 97(2) of the Child Justice Act.

The Chairperson asked Mr R Dyantyi (ANC) to assist the Committee in ensuring that the reports were presented to the House before the recess – probably the following week, because the Programming Committee sat the next day.

Mr Dyantyi agreed to confer with the programming whip that night.

The meeting was adjourned.