Cannabis for Private Purposes Bill: public hearings; Land Court Bill: response to submissions

Meeting report

Chairperson’s opening remarks
The Chairperson stated that the Portfolio Committee was conducting a second round of public hearings on its proposed amendments to the Cannabis for Private Purposes Bill. These amendments focused on three areas for which supplementary submissions were invited. These areas were commercialisation, religious use and exemptions, and cannabis for medicinal use which had not been covered in the original Bill. It was expected that everybody would focus on those three areas only as the Bill had already been covered by extensive public hearings in August/September 2021.

The Committee appealed to everybody to stick to the three areas it had invited people to comment on, because it would not add value to discuss issues that had already been ventilated. Everybody would have ten minutes to make oral representations, followed by questions.

Some organisations had elected to make only written submissions. Others elected to make both oral and written submissions. In terms of value, whether written or oral, the Committee attached the same value to all of them. It would go through all submissions and give them the same amount of attention when the Department had to respond to those. The Committee intended to finalise the Bill this term as well as the Land Court Bill.

COSATU Submission: Cannabis for Private Purposes Bill
Mr Matthew Parks, COSATU Deputy Parliamentary Coordinator, presented.
• COSATU supports the legalisation of cannabis for private, commercial & medical purposes.
• COSATU notes additional amendments to the Cannabis for Private Purposes Bill
• COSATU supports objectives of the Bill & welcomes efforts by Committee to address public concerns in the original draft of the Bill.
• Federation supports intentions to provide a legal framework for cannabis for personal, medical, religious & commercial purposes.
• COSATU is concerned that in many ways the additional provisions in the Bill do the opposite.
• In some instances, the Bill’s provisions are unrealistically bureaucratic and cumbersome and will thus simply be unworkable and ignored by society.
• In other instances, the provisions are unnecessarily restrictive & thus will in reality continue to prohibit the decriminalisation of cannabis.
• There is a need to review the Bill’s provisions to ensure that they meet the objectives of the Bill itself, which is to decriminalise cannabis for private use.

COSATU Support to Allow for Personal Use
• COSATU supports objectives of the Bill & its provisions to allow for the personal use of cannabis.
• Additional amendments in this regard, it hopes, will help achieve this objective.
• Federation welcomes provisions seeking to bring personal use of cannabis in line with smoking legislation.
• Provisions in support of public education & minors are supported.

COSATU Support to Allow for Religious Use
• COSATU supports the intention of the Bill to allow for the use of cannabis for religious purposes.
• Provisions requiring the registration of religious institutions & representatives may be a necessary compromise.
• However, this may be weighed up against the ability of the state to enforce compliance against the realities of a proliferation of religious institutions, even if this is intended for the Rastafarian community.
• COSATU does not believe the provisions requiring religious institutions to provide the numbers of persons who will be participating in a religious activity where cannabis is used, & a long list of other requirements, is practical or feasible.
• Requiring the provision of this list of information may simply discourage religious institutions from complying with the law, bog the Minister or Department down in administrative work & make the task of SAPS in enforcing legal compliance a bureaucratic nightmare.

COSATU Proposals:
• Revise & drastically simplify the provisions enabling religious institutions to achieve legal compliance.
• These could be simplified to a once off registration that can easily be done by them.

COSATU Support to Allow for Medical Use
• COSATU welcomes & supports the provisions legalising cannabis for medical use.
• Federation believes that these provisions will provide relief for many persons who will benefit from cannabis for medical purposes.

COSATU Support to Allow for Commercial Use
• COSATU supports providing a legal framework for the commercial production, sale & consumption of cannabis & related products.
• Government is developing an industrial master plan in this regard.
COSATU is concerned that the Bill is divided, contradictory & not clear on where Government stands in this regard?
• Does Government support the development of this industry or not?
• If it does, then the legal framework needs to be clear. If it does not, then equally this must be made clear. The Bill as it is drafted now, does not make this clear.
• It indicates clearly how cannabis can be produced for personal use. It is clear how it can be used for medical use.
• It is not clear how it can be produced, sold & used for commercial use. This will send confusing signals to the public, commercial producers & law enforcement organs.

COSATU Proposals:
• Revise & drastically simplify provisions providing for a clear legal framework for the commercial production, sale & consumption of cannabis.

Conclusion
• COSATU welcomes the revised Bill.
• Committee efforts to address concerns in the original draft of the Bill are supported & welcomed.
• Provisions for personal & medical use are supported & should address calls in this regard.
• Provisions providing for religious use are well intentioned but unrealistically bureaucratic & need to be simplified to ensure compliance.
• Provisions for commercial production, sale & consumption are confusing & need to be clarified.

Discussion
Mr S Swart (ACDP) stated that the ACDP position on the Bill was quite clear. He appreciated the additional concerns that Mr Parks raised, particularly the bureaucratic nature of religious institutions. He supported Mr Parks’ view that a once-off registration process would be far more helpful than the bureaucratic process of looking at the number of people who would be participating in a religious activity involving cannabis. This was in view of how the religious exemption was proposed to apply only to Rastafarians.

Mr Ettienne van Zyl submission
Mr Etienne van Zyl, Social Anthropology master’s student, University of South Africa, made an oral submission on his findings from his anthropological research. In some cases, his submission would deviate slightly from the aims of the meeting, but he hoped that the Chairperson would bear with him, because he did think that his submission was applicable to Bill as a whole. The revised Bill was an entirely new iteration. He wanted to share the findings of his study of the current public views on the Bill.

The Chairperson asked if Mr van Zyl’s submission would focus on the three issues advertised.

Mr van Zyl replied that his findings did broadly touch on those issues.

The Chairperson appealed to Mr van Zyl to address the three areas that were advertised. The Committee had already dealt with most issues in the three days of public hearings in 2021. The processing of the Bill was at quite an advanced stage and he asked that presenters not bring it back to an earlier stage.

Mr van Zyl then presented some of the key findings from his anthropological study as it related to cannabis policy development in South Africa. His work as an anthropologist was currently focusing on cannabis policy development in South Africa, which formed part of his master’s dissertation. In his research, he interviewed a diverse range of cannabis stakeholders throughout the entire value chain for about eight months. The participant pool included cannabis users, cultivators, sellers, government representatives, non-governmental organisations (NGOs), indigenous knowledge system (IKS) representatives, entrepreneurs, scholars, legal advisors, legal practitioners, and activists.

He had been in academically-focused cannabis research for almost three years. First, he focused on cannabis stigma among the South African public for his honours research, and he was currently focusing on policy development for his master’s dissertation. He had been researching cannabis informally for well over two decades, so he felt it was fair to characterise himself as having his finger on the pulse of the cannabis community, and as having a nuanced understanding of the key issues that various stakeholders faced in light of the Cannabis for Private Purposes Bill. The perspectives he would present reflected aggregated patterns emerging from the analysis of research-related data, which could also be phrased as “the actual voices of South Africans”.

On the limitations on growing, research participants considered the suggested parameters of the Bill to be unfeasible for home cultivation and private use purposes. There exists a broad range of use cases for cannabis, which the Bill does not provide. The pervasive view among research participants was that the Bill imposed unfair limitations, excluding a large number of South Africans from cultivating and storing the quantities of cannabis that they may require for their personal needs and during the annual growth cycle.

The cannabis plant is an annual plant, but it is subject to seasonal limitations for cultivation and propagation outdoors. Indoor cultivation is expensive, and not everybody can afford it, nor do they possess the required space indoors or means for continuous cultivation throughout the year.

The main concerns of participants were as follows: Being subject to an annual cultivation cycle; the quantities one could produce for a year’s supply, particularly when cultivating outdoors; and how four plants might not be enough for an individual user. If raw plants were reduced, for example, hundreds of small plants (seedlings) are required to keep a healthy supply going. Plants at that stage would not necessarily get one high, but they did not qualify as hemp either, according to the Bill. Eight plants might not be enough to provide the amount of oil one would need for palliative care. There are other medicinal cases that do not qualify as palliative which require a large quantity of cannabis to be cultivated and stored for an annual supply. Eight plants per household may be unfairly limiting when more than two individuals live together in a shared space. One could imagine a case where three to eight individuals share a property, but cannot accommodate eight plants between them despite having vastly different needs. Lack of space remains a concern, due to many South Africans living in areas where they do not have the private space or means to grow their own cannabis. People may not have the funds to purchase licensed cannabis. There is also no provision made for growing in a space accessible to people, but not associated with their own dwelling. Cultivating particular strains means that one needs to keep mother plants that retain the availability of stable plant genetics. Growing from seed is not the same as taking cuttings to clone from another plant, for example. If one grows four different strains, only four plants can flower to produce usable cannabis, as the mother plant needs to remain in a vegetative (or non-flowering) state for an indefinite amount of time.

The Bill’s definition of the difference between a cannabis plant and a seedling is problematic for both novice and seasoned cultivators. One does not always know how many plants will survive, hence a need for more than four to eight plants to secure a large enough harvest if crop failure does occur. When growing from seed, one needs to grow many plants to select desirable genetic expressions for further propagation. Genetic expression is not uniform between seeds derived from a single flowering or plant type. Reflecting on that, it was evident that plant counting was not feasible. Participants broadly communicated that they did not want this type of regulation imposed on cultivation or quantities, as it seriously complicates or limits their cultivation efforts. South Africa has liberal limitations on how much alcohol one may possess: 150 litres per private property, and it does not limit the amount of tobacco one may possess. Why are restriction limitations relevant to cannabis, which has been shown to be safer than both tobacco and alcohol? The suggestion made by participants on limitations was to abolish the notion of plant counting entirely, or at worst allow for a much higher number of plants for cultivation. This would have to be in the hundreds to allow for adequate cultivation for all the needs expressed above. By not having plant counts, burdens on the South African Police Service (SAPS) could also be alleviated, and unlawful arrests would no longer flood court rolls.

One key point was evidence-based policy. A broad intersection of participants requested evidence-based policy for cannabis regulation. Many expressed that the government not being clear in its reasoning meant that public participation sessions are not informing policy and this raised the question why this is so. Requests had arisen for the source material and decision-making processes to be made publicly available. A shared sentiment exists that the Bill largely ignores available scientific evidence which confirms that cannabis is relatively safe, especially when compared with other legal substances like alcohol, tobacco and certain pharmaceutical drugs, both scheduled and non-scheduled. Participants envisioned that cannabis regulations should be approached proportional to alcohol and tobacco. Transparency, accountability, accuracy and relevance all form part of the core elements of inclusive evidence-based policy, and are informed by cohesive patterns emerging from the research data. Such data was based on interactions with study participants, and what they thought evidence-based cannabis policy could be. Transparency, accountability, accuracy and relevance are all very important for the Bill. The diversity of cannabis stakeholders, and their values and cultural expressions, all need to be acknowledged if the cannabis policy is to be inclusive. Culture is not uniform, and cannabis culture less so. Cannabis culture exists on a spectrum, and consists of many different aspects and expressions; some are polar opposites and some are incompatible. This is why the stakeholders needed to be engaged to ensure relevant policy.

Discussion
The Chairperson said Mr van Zyl did not address the three issues the Committee asked people to address in these public hearings. It was up to Members if they wanted to ask questions. The Committee had already dealt with the issues he raised in the last round of public hearings, and in its subsequent meetings.

Marijuana Board of South Africa (MBSA) submission
Mr Steven Thapelo Khunou, MBSA Secretary, stated that MBSA was speaking on behalf of traditional leaders, traditional healers and Rastafari society who had given the MBSA notes to present.

In 2020, the United Nations rescheduled cannabis from a narcotic. The Western Cape spoke on the Drug and Trafficking Act. Subsequently, it confirmed that issues of cultivation and possession of marijuana must be looked into. Government was given two years two create laws, and it failed, which was why people were living in a state where there was no law around cannabis use. The human rights of the Rastafari people had been violated by the South African Government ever since apartheid. Such violations were also seen early last year, when the Khoi king was harassed by the police at the Union Buildings for planting marijuana. Dischem and Clicks were dealing in marijuana daily. There was collusion between government and big farmers to oppress and steal intellectual property of native people. There were also laboratories and dispensaries, which black people were not part. The industry showed bias towards “white monopoly capital”. In South Africa, black people faced arrest, and their leaders were killed. Jan Smuts once went to the League of Nations to tell it that marijuana was not good for people, which was not based on science, and was a lie. There was a need to correct the schedule of cannabis. South Africa was in a “cannabis Convention for a Democratic South Africa (CODESA)” but it did not know what the schedule of cannabis was, scientifically speaking. It was working on the assumption that cannabis was bad.

MBSA agreed with COSATU on the point that there was no clear law. Government was unclear on how it would regulate the cannabis industry. The Liquor Board regulates the liquor industry, and it was also looking into forming industry associations to ensure that the value chain is there. Why was government shying away from that model? Parliament needed to make sure that it frees the cannabis industry, and its people.

On section 1: MBSA recommended that there must be modifications. It recommended that the words “possess in private” be removed, “prescribed qualities” be removed.

On section 2: MBSA recommended “prescribed qualities” be removed as it is confusing. Cannabis is better than cigarettes, but there are no prescribed qualities” for cigarettes. That needed to be made clear so people can benefit from the cannabis and hemp industry.

MBSA agreed with COSATU on the Bill needing to look into the private space, to look into the commercial space, and to look into the religious aspect. MBSA agreed with the religious aspect, because it had noted that the United Nations had given the sacramental right to the International Rastafari Development Society. MBSA requested that the South African Government look deeply into itself, in line with those guidelines, in order to bring about change that had never been seen before. It was unfair that when changes like these were being discussed, South African people were still arrested. For example, Mr Khunou could be invaded by the police today, and a traditional healer could be invaded by the police tomorrow. It was unfair. There was corruption in the cannabis industry. Politicians were denying ordinary citizens the ability to deal in cannabis.

MBSA requested tha government be aware that the Bill was late – it was supposed to have done law consultation from 2018 to 2020. It failed, and it was now two years late. In that grey area, the big farmers and big pharmaceutical companies were benefitting. Dischem and Clicks were dealing regularly. Those companies were advertising cannabis products on TV every day, but native people were not benefitting at all.

South Africa did the same thing with rooibos and hoodia – native people never benefited from rooibos and hoodia, up until they had to win the right to benefit in an international court. The South African government needed to repent from the way it had been doing things. The South African Health Products Regulatory Authority (SAHPRA), for example, was giving people licences “willy-nilly”. It was not checking if there was compliance with broad-based black economic empowerment (BBBEE). That needed to be questioned. MBSA could not sit and talk about development that was not going to benefit the people. Even in the meeting, one could see that people were not equal – others could present beautiful slides, but others could not even be given a minute to check how to present something when there was load-shedding.

Mr Khunou addressed the Chairperson saying the language used to oppress people when they spoke about marijuana must end. It was not fair. Black people needed to be free to speak about marijuana; specifically, the MBSA said that the discussions on the Bill must go to communities, and not be online. In the previous hearings, all presenters said that they rejected the Bill. But the Chairperson tried to “force” it on them. His tone became heated as he questioned what the Chairperson was trying to do. Stakeholders had told the Committee to follow the proper procedures. He wondered if the Committee had not followed procedure deliberately. He questioned why the Committee was “pushing this law down the throats” of South Africans when it did not even have a white paper or a green paper. It just came in with a Bill.

In closing, he had a message for the President of South Africa: “You have failed us; you have delinquently failed us as South Africans, because Parliament [...] had failed the judgement of Judge Zondo. We are saying to you, go back to communities of interest. Let them be part of these discussions”.

Discussion
Mr Swart stated that he found the comments against the Chairperson objectionable. The Committee stood behind the Chairperson. There was an ongoing parliamentary process. The ACDP had expressed its concerns and objections to the Bill. The comments made against the Chairperson were highly objectionable.

Karoo Bioscience
Mr Doron Isaacs, Karoo Bioscience CEO, said the company had made a submission in 2021 under the name Canna Karoo and it was now named Karoo Bioscience. He presented a summary of Karoo Bioscience’s points of concern:
• Medical use has not been adequately addressed. It is not possible to purchase cannabis from licensed producers for medical use.
• “Commercial” should not be synonymous with “recreational”. There should, at least, be commercial activity allowed for medicinal purposes. Recommendation: Permit purchase by medicinal users from SAHPRA-licensed producers.
• The Bill postpones commercial activities until a future legislative process. Recommendation: Enable the Minister of Justice and Correctional Services to prescribe regulations in concurrence with the Minister of Trade, Industry and Competition.
The written submission noted the following on this point: It is legally meaningless for Parliament to grant itself the right to enact future legislation, since it already has that right. Doing so does not advance the development of a domestic cannabis market with the attendant jobs and tax revenue potential envisaged by the President.
• The term “recreational” is not ideal. Recommendation: Use the term “adult-use” instead.
The written submission noted the following on this point: The phrase “recreational use” is not necessarily helpful or appropriate. People use cannabis for a variety of reasons. Those without medical prescriptions often use cannabis to moderate stress, anxiety, insomnia, pain or other
symptoms. Karoo Bioscience recommends that the term “adult-use cannabis” be used instead of “recreational” – this simply indicates a consenting adult choosing to use cannabis in the absence of a medical certificate. The term “adult-use” is the preferred term in jurisdictions such as Canada and various states of the United States of America where cannabis markets are highly developed.

He presented a schematic of cannabis regulatory regimes (see submission):
Non-commercial/Medicinal:
1. User must have a medical certificate and conduct home-grow or be gifted some product by a home-grower. No regulatory quality control is possible.
Non-commercial/recreational:
2. User must produce home-grown cannabis. No regulatory quality control is possible.

Commercial/Medicinal
3. User must have a medical certificate and can therefore purchase product from SAHPRA-licensed producers subject to quality control.
Commercial/Recreational
4. Adults can purchase product from SAHPRA-licensed producers subject to quality control.

Discussion
Mr Swart noted that the ACDP’s concern was about abuse, and particularly the impact on children. He commented that the previous month 36 high school children were suspended for smoking dagga at school. Mr Isaacs referred to section 1A on commercial activities, which spoke about new national legislation dealing with harm reduction, demand reduction, and prevention of persons under the age of 18 having access to recreational cannabis. At the moment, it seemed that even when it was illegal, there was still widespread usage and abuse. The Medical Research Council (MRC) presented evidence to the Committee that use of cannabis was likely to increase. That was one of the reasons the ACDP was opposed to the Bill. He asked Mr Isaacs to comment on the provisions in the Bill that were trying to balance commercial and medicinal use, and how the impact on children would be minimised, given that there was a broad view that there should be broader access to cannabis.

Mr Isaacs replied that Mr Swart and he agreed on two fundamental things: Firstly, cannabis use is very widespread. Secondly, both agreed that cannabis is not harmless. It could have potential harms, particularly to developing brains in adolescents. What civilised societies had realised for a long time was that when something was extremely widespread, the way to undertake harm reduction was not to try and stamp something out through prohibition. Prohibition simply did not work. Societies learned that in the 1920s with alcohol. It had taken societies “another 100 years” to learn about cannabis, which was vastly less harmful than alcohol. What happened recently with those school children was happening because cannabis was extremely widely available in South African society. He did not believe that children should be able to buy cannabis at all. Advertising should be carefully controlled, there should be public health messaging. It should be as difficult as possible for any child to get their hands on cannabis.

When adults legally access cannabis, should it be from someone on the street, selling them something which may have fungus, heavy metals or pesticide in it; with no known dosage, no known potency, or should it be something that the state has oversight and ability to quality control? It was known that everyone could access cannabis, and it was basically accepted that people could access a form of it over which the state did not have any ability to do quality control. He believed that a regulated market would make those kinds of incidents less likely. What had been seen in other jurisdictions was that abuse of cannabis did not go up with regulation and legalisation. He disagreed with the MRC’s research, as there was much evidence to the contrary.

As an interim step, if there was great concern about widespread adult use of legal cannabis, then at the very least those with medical prescriptions should be enabled to purchase cannabis via a mechanism in the Bill. There was currently no such mechanism. That was a great missed opportunity. Instead of postponing commercial activity to a future legislative process, allow the appropriate ministers to prescribe regulations to do that. It would still be a rigorous process, subject to public participation, but it would not postpone commercial activity indefinitely.

Umzimvubu Farmers Support Network (UFSN) submission
Mr Ricky Stone, UFSN Director, introduced himself as both a practising attorney and the director of the organisation. Regrettably, the other directors and the actual farmer beneficiaries of the AmaMpondo aseQuakeni could not be in the meeting due to the “patently unconstitutional short notice”. UFSN was given notice only on Sunday evening 22 May for oral submission to be made in this meeting. UFSN wanted to reserve its rights in that respect.

UFSN had made previous submissions on the Bill, and participated in last year’s public hearing. It was quite clear that its previous submissions were not even considered. Although there had been three additions to the Bill, there was no accommodation for entrenched customary and indigenous rights, many of which had existed for well over 500 years. UFSN asked the drafters of the Bill and the Committee to consider the International Guidelines on Human Rights and Drug Policy. It thought that was very important – those guidelines were a reference tool for policymakers and lawmakers, and had they been considered, then there would have been a Bill which was reframed through a human rights lens. What the UFSN saw in the current Bill was a continued apartheid-era prohibitionist mindset which filtered through almost every section of the Bill. It was unfortunate.

On consultation: South Africans were becoming accustomed to consultation for the sake of it, where consultation was done merely to tick the necessary box in the lawmaking process. The Chairperson had said the Bill would be passed this year which begged the question why the requests for submissions were even being put out to the public. What was the rush, given that it was almost four years since the Constitutional Court judgement?

Despite the unconstitutionality of the Bill in total, UFSN would provide some high-level comments on the proposed amendments to the Bill and outline some of the problematic components.

Addition to Bill: Commercial Clause
Although the intention to include provisions dealing with the commercial aspects of adult-use cannabis i.e. what the government calls “recreational” use, is most welcomed, it is utterly inappropriate to attempt to “enable” such a commercial industry through undefined and yet-to-be-drafted legislation.

The attempt is, with respect, a red herring of the highest order. The insertion of a commercial provision is hardly enabling anything of substance and appears to be a clear attempt to appease those members of civil society and government who have called for the liberalisation of adult-use cannabis (which is undoubtedly a significant market opportunity).

Further. the use of “may” in section 1A(2) implies that it would not be mandatory for national government to enact such legislation. However, the intention of the drafters of the Bill clearly intended that government “must” enable such a commercial industry. UFSN recommended that a far more suitable provision, whether it would be empowering a minister to promulgate regulations, would be that the commercial components, to the extent that there was an additional “commercial” Bill that was already drafted and nearing finalisation, would be to insert a mandatory timeframe within which the legislation would be promulgated.

In the UFSN’s view, it seemed appropriate to return the Bill to the drawing board. It seemed wholly incongruent to introduce commercial provisions into a Bill which from the outset was merely focused on cannabis for private use for adults and private cultivation. It is respectfully submitted that South Africa requires a single piece of “Cannabis Law” which caters for all legitimate uses of cannabis (medical, non-medical/adult-use, and industrial). The existing piecemeal attempt to liberalise cannabis in South Africa by retrofitting separate existing pieces of legislation is clearly not working and is riddled with myriad unintended consequences and devoid of any legal certainty.
For example:
- SAHPRA purports to issue “medical cannabis cultivation” licences, however, they do not possess the legislative authority to do so. They are only authorised to regulate the manufacture of medicines, which, by definition, does not include cultivation of the raw material used in the manufacturing process (the word “cultivation” does not appear in the Medicines and Related Substances Act). Their conduct remains unlawful, and an entire multi-million-rand industry stands at risk of collapse and/or large-scale lawsuits for damages.
- The Agriculture Department has ushered in “hemp” regulations to enable an industrial cannabis (hemp) sector, however, the stipulated Tetrahydrocannabinol (THC) percentages which must be present in the cannabis plant for it to be deemed “hemp” are arbitrary and unscientific, and will, in a mere matter of months, be revealed for the farce that it is when farmers who have cultivated “hemp” need to destroy their crops because they contain more than the allowable level of THC.
- Despite the “hemp” regulations and permit scheme, the overarching legislation, the Drugs and Drug Trafficking Act has not been amended and still defines cannabis as “the whole plant and any part thereof” which necessarily includes “hemp”. As such, all “hemp” cultivation remains unlawful and in conflict with the Drugs Act.
- Of immense concern to UFSN, is the evidence which is emerging of SAHPRA-licensed medical cannabis operators selling, or rather dumping, their raw cannabis material (flower) into the illicit market with impunity. UFSN members were currently gathering sufficient evidence of these known practices and will produce it in the appropriate forum in due course.

The commercialisation aspect was needed quite quickly, because of the unintended consequences of the privacy judgement of the Constitutional Court. As much as the judgement was welcomed, it had the effect of drying up markets for the existing AmaMpondo farmers. Many such farmers had not sold cannabis. Farmers had been participating in an illicit industry at least for the past 100 years, despite their participation in a lawful industry 400 years before that. Many UFSN beneficiaries were on the verge of slipping further into poverty and were well below the breadline.

Addition to Bill: Rastafari Religious Exemption
Whilst the accommodation of the Rastafari is welcomed, it is of course wholly inappropriate to elevate one religion and/or culture above others. Clearly, such an attempt violates section 36 of the Constitution – for failing to constitute a law of general application – while similarly offending section 9 of the Constitution (the Right to Equality and the prohibitions on unfair discrimination).

In the UFSN previous written and oral submissions, it made it clear that its farmer beneficiaries, the amaMpondo, equally enjoy religious, spiritual and cultural practices associated with cannabis, yet no such enabling provisions are advanced to protect their religious, spiritual, and cultural uses of cannabis. Such failure renders the Rastafari religious exemption unconstitutional in all respects.

In addition, it is unclear, based on the express wording contained in the Bill, whether it is government’s intention to permit only Rastafari religious and cultural use. Under the section’s heading – reference is only made to the Rastafari – whereas the corresponding provision 1B places no such restriction as to which religion or culture may seek exemption, although 1B(11)(c) defines such a “cultural community” or “religious community” to refer to the Rastafari.

Of course, it should be appreciated that the purported process to recognize and exempt a specific religion or culture is overly cumbersome, involving a drawn-out process entailing ministerial involvement, pronouncement, and authorisation by means of issuing permits. It will be near impossible to enforce these provisions, and, with respect, it is not the duty of government, through whichever arm, to “police” religious and cultural practices. Indeed, why a cultural or religious community now requires a permit to practise their religion or culture, many of which have existed for hundreds of years, is legitimately questioned. Quite clearly, the provisions amount to excessive government overreach rendering them unconstitutional.

Addition to Bill: Palliation or Medication
The argument that current provisions amounted to excessive government overreach could also be said about palliation and/or self-medication. It was a self-defeating addition. Why does an adult person wishing to use cannabis for self-medication require the authorization of a healthcare practitioner to use such cannabis? This is akin to blurring the lines between “medical” cannabis and “self-medical” cannabis.

The State Law Advisor, Mr Sarel Robertse, has made abundantly clear, that the intention is to treat cannabis no differently than other legal substances such as alcohol. One does not need prior authorization from a healthcare practitioner to consume alcohol, so why is it required for cannabis?

Although the new additions were welcome, they seemed to be wholly incongruent. UFSN would caution Parliament and the Committee to consider the effects, and in particular, the unintended consequences which would follow, particularly as it would overburden the UFSN’s existing farmer beneficiaries who had cultivated cannabis for many hundreds of years.

Discussion
Mr Swart asked about the clear evidence UFSN was gathering of those that had SAHPRA licences dumping their cannabis onto illegal markets. Could UFSN elaborate on that, and would it be laying charges? How does one prevent that going forward?

Mr Stone responded that Mr Swart’s concerns were also concerns of the UFSN. His opinion was that the current undesirable situation had arisen because there was no domestic market for medical cannabis. Many of the SAHPRA-licensed cultivators were having export challenges. Such cultivators were hiding behind the fact that they were licensed. These were big, established agricultural entities. UFSN was gathering the necessary evidence, and it would hope to make it available to the Committee. UFSN had instructions on behalf of the AmaMpondo to bring that issue to SAHPRA’s attention, and to the attention of the relevant ministries. UFSN could only hope that was something that the Committee took note of. He reiterated the UFSN view that South Africa needed one cannabis law and one single regulator that was capacitated and had the resources, and could enforce existing regulatory and licensing conditions.

Cradlestoned Quality Solutions submission
Ms Marleen Theunissen, Founding Director, focused on the concept of the private cannabis club (PCC) and how it could be incorporated into the Bill’s realm of private use in a simple and effective way. She drew attention to developments in jurisdictions such as Malta in the sphere of cannabis clubs. Earlier in 2022, Malta had regulated recreational cannabis for personal use, and specifically allowed for the formation of cannabis clubs, non-profit organisations (NPOs) that aimed to distribute small, personal-use quantities of cannabis among its members. Spain has had cannabis clubs for many years, although it was not as closely regulated. She pointed out that cannabis clubs were not a new phenomenon, and that other countries had already found a working solution within that concept as a non-commercial exercise of fundamental human rights.

Both Malta and Spain required that cannabis clubs were established as non-profit entities, to ensure that no dealing could take place within the ecosphere of the club. Those countries also required harm reduction measures, and some level of reporting of the quantities cultivated and issued to its registered members.

The South African cannabis club model was currently unregulated, and based itself on two current laws: 1) The 2018 Prince Privacy Judgement, which states that an adult person may possess, consume and cultivate cannabis in a private place for personal consumption. 2) Freedom of Association entrenched in section 18 of the Bill of Rights, which states that “Everyone has the right to freedom of association”. PCCs wished to exercise those two rights simultaneously, by claiming that private does not preclude collective, therefore they were exercising their right to privately consume, possess and cultivate cannabis collectively.

Whether the Committee acknowledged the concept of a PPC in the Bill or not, it was inevitable that a court of law would eventually be tasked with judging that concept, and determining its legitimacy in terms of the Bill’s provisions once enacted. She asked the Committee to consider section 39(2) of the Constitution, which stated that: “When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.”

At its core, a legitimate PCC was an entity specifically established to assist adult cannabis users who did not alone, or by themselves, have the time, space, knowledge or resources to exercise their right to cultivate, possess, and/or consume cannabis in private. Due to the Prince Privacy Judgement, those rights were constitutionally protected under the right to privacy in section 14 of the Constitution. It would be arbitrary and irrational, and in conflict with the rule of law and likely constitute unfair discrimination, if the only cannabis users who benefited from the right and decriminalized status conferred by the Prince Privacy Judgement and the Bill were those who had the resources to privately cultivate cannabis by and for themselves. Accordingly, any law that regulates the private use of cannabis cannot feasibly differentiate or discriminate between such groups of people, especially considering the vast socioeconomic disparities and inequalities that existed between people in those respective groups.

In the Cradlestoned submissions, there were primarily two models of legitimate PCCs:
1) A personal/private model, where members individually contract with and reimburse the PCC for assisting them to personally and privately cultivate their own plant. This is a model that is exclusively grounded in the right to privacy in section 14 of the Constitution, as per the Prince Privacy Judgement.
2) A shared/collective model, grounded in both the right to freedom of association and the Prince Privacy Judgement. This model is appropriately captured in the widespread stokvel concept. Under this model, individuals come together to share resources, knowledge and activities. Members achieve a common purpose that is often social or public through cooperatives or an NPO. This is done to exercise members’ rights to privately consume and cultivate cannabis.

In the Cradlestoned submission, a court tasked with determining a personal/private model or a shared/collective model of PCC would have to consider the spirit, purport and objects of the Bill of Rights, and interpret clauses 2(1) and 2(2) of the Cannabis Bill, assuming it was enacted as the revised Bill. This would have to be in line with the equality-based imperatives to not irrationally differentiate between people or to unfairly discriminate against people, which was entrenched in section 9(1) and 9(3) of the Constitution. Critically, the right to freedom of association that was entrenched in section 18 of the Constitution covered and sanctioned PCCs with either model. There was nothing about the wording or context of clauses 2(1) and 2(2) of the revised Bill that prohibited an adult person from performing the permitted personal use activities by enlisting the assistance and/or community of a PCC designed and established to those ends. The argument went that the court would take cognisance of the corollary nature and the indivisibility of the right to privacy and the right to freedom of association when interpreting clauses 2(1) and 2(2) of the revised Bill, as it would be required to do in terms of section 39(2) of the Constitution. The court would likely hold that those provisions permitted cannabis enthusiasts to join and form PCCs. That argument would apply mutatis mutandis to a shared/collective model of PCC that is pursued as a non-commercial means to access safe cannabis for private use by a vast number of cannabis-consuming South Africans who make regular use of stokvels, and who do not have the means or resources required to cultivate and consume cannabis by and for themselves, away from children. Such people would also not have the resources to track and trace individual ownership of individual cannabis plants by individual members.

Existing private cannabis clubs in South Africa operate privately within an NPO to prove that they could not be dealing in cannabis. Clubs include only existing cannabis consumers as part of their members base, and only adults as members. Clubs use a “supply follows demand” stance to ensure that they use a closed-loop system to provide cannabis for their members. These clubs are implementing harm reduction and educational practices, as could be seen in the six requirements of clause 1A(3) in the Bill: “Without limiting the scope of national legislation contemplated in subsection (2), to authorise and regulate commercial activities in respect of recreational cannabis, due consideration should be given to–” (followed by six requirements in the Bill). The PCC model is already complying with those six requirements. The PCC model can be beneficial to the economy, both in tax revenue and job creation. The model can be used in a stokvel to extend these opportunities to indigenous and rural communities, who always tend to be left behind at the start of new industries.

Cradlestoned also submitted a proposed amendment to clause 2(1) of the Bill (see submission).

Discussion
There were no questions or comments.

Fields of Green for All (FGA) submission
Ms Myrtle Clarke, FGA Managing Director, quoted the Head of the Commission on Narcotic Drugs: “The role of civil society is to create a bridge between public health and criminal justice”. That was FGA’s role, and its position remained unchanged. FGA rejected the Cannabis for Private Purposes Bill outright. The recent amendments have only served to make the Bill even more unconstitutional.

The Cannabis for Private Purposes Bill is not based on evidence. The Bill is based on the perceived harms of cannabis, the plant itself and the trade therein. The Bill is not the solution to the commercialisation of cannabis in South Africa.

The responsible adult-use of cannabis does not equate to “recreational use” and the continued use of this dismissive term further highlights the lack of knowledge of South Africa’s centuries old cannabis culture.

FGA’s constituency spans the entirety of the existing, unregulated cannabis industry in South Africa. Let it be noted here that Fields of Green for ALL stands in solidarity with the Umzimvubu Farmers Support Network, an organisation whose impeccable submissions to this Committee have been similarly ignored. She was referring to the feedback on stakeholders’ submissions. Both FGA and UFSN did not receive any feedback.

FGA also stood with MBSA. She asked the Committee to consider that Mr Khunou’s indignation was the result of years of oppression. FGA understood that Mr Swart found Mr Khunou’s submission somewhat insulting, but please consider that he came from a sector of cannabis culture that had been persecuted for many hundreds of years.

FGA respectfully asked that the Committee consider all its submissions as everything it had said thus also applied to the revised Bill. It is for this reason that its comments took the form of questions that it would like the Committee to answer.

Once again it asked that the Committee consider FGA’s publication, “Cannabis in South Africa. The People’s Plant. A Full Spectrum Manifesto for Policy Reform” as one of the Committee’s resources.

Amendment 1
“Commercial Activities in respect of recreational cannabis”
FGA objected to the use of the word “recreational” as this serves to discriminate against responsible adults who use cannabis as a safe relaxant. It is reiterated that it does not serve the progress of a legitimate cannabis industry in South Africa to create a muddle of provisions for commercialisation within a specifically private bill.

What about the fact that both Judge Davis and Judge Zondo’s judgments described “dealing in” cannabis as a social ill?

Amendment 2
“The cultivation, possession and supply of cannabis plants and cannabis by cultural or religious communities or organisations for cultural or religious purposes.”

The amendments are clear that this refers to the members of the Rastafari religion. FGA stood with the members of the Rastafari religion.

Why is preference given to a religion that is less than one hundred years old when there are records of the use, cultivation and trade in cannabis in Southern Africa for over 700 years?

How are the enforcers of this law going to identify a member of the Rastafari religion? Would it be by the colour of their skin, their hairstyle, or their clothing?

Does the Committee believe that this amendment will pass constitutional muster?

Amendment 3
“The use of cannabis for palliation and medication.”
Many factors make the inclusion of this amendment problematic.

Where is the scientific evidence to support the lengthy explanations on THC levels? This has serious implications for patients growing their own medicine under the Bill. Would there be one set of laws for sick people, and another for healthy people?

See plant counting below.

Extra considerations
Has the Committee considered that the number of plants prescribed may not be sufficient for a patient to grow their own medicine?

Who is going to come and count people’s plants? Who comes to people’s homes and counts their bottles of whisky?

Has there ever been consideration of the perceived harms of the cannabis plant for the suggested criminal sanctions? For example, there would be eight years in prison for having too many plants; eight years in a cage. Mr Swart mentioned that FGA had not considered the harms to children, and highlighted a recent news article about children taking dagga to school. Teenagers are “naughty”, and also take alcohol to school. Had Mr Swart considered the harms of incarceration, robbing children of their parents, and subjecting citizens to police brutality and corruption? A Constitutional Court Judge highlighted the overcrowding in prisons. Would South Africa continue to lock up cannabis cultivators, users and traders together with hardened criminals who had actually caused harm to society?

In conclusion, Fields of Green for ALL thanked the Committee for its time and looked forward to the formation of a South African Dagga Commission so that the evidence may be heard and all may achieve laws and regulations that are fair, sustainable and in line with South Africa’s world class Constitution. FGA would not give up until the person who sold the “matchbox” on a street corner had the opportunity to graduate into the legal cannabis value chain.

Discussion
Mr Swart appreciated the FGA manifesto for policy reform. He encouraged all Members to read the document. He also appreciated FGA’s comments, and he wanted to emphasise that the ACDP had always been for restorative justice approaches. He appreciated the FGA’s questions, and the Committee could deliberate on those at a later stage.

Cullinan and Associates (C&A) submission
Mr Paul-Michael Keichel, C&A Attorney, wanted to avoid repeating what other submissions had said as well as repeating its own written submission.

He brought up a point raised by Mr Stone that Parliament was revealing its hand in saying that the Bill would be passed this year, “come what may”. The submissions were “hamstrung” by the fact that the public was instructed to confine themselves to the proposed amendments to the Bill. It revealed a bias in favour of the Bill being viable, and being constitutional as it stood. The people submitting that day had their hands tied behind their backs, because there was an obvious interrelationship between the amendments and the fundamental Bill as it was. There were legitimate comments to be made about the foundation of the Bill being “cracked” and not being constitutional or viable for any sort of amendment. The reason he was saying that was because it opened government up to further constitutional challenge. Nobody wanted this process to be tied up in the courts for decades to come, so the invitation was to engage with commenters on a constructive basis and get the Bill right. When he said “this Bill”, he meant the Bill as it ought to be, specifically a “cannabis for all legitimate purposes Bill” and not just for private purposes.

What had been mentioned was the unnecessary bureaucratic process that would be achieved by two of the insertions around cannabis for self-medication or palliative care, and for religious and cultural uses. What Parliament was trying to say with that was that if someone was not part of a recognised religious or cultural community, that person was limited in the following respects. If someone was sick, or a Rastafarian, and the person could prove either of those things, they were entitled to certain exemptions in terms of the Bill. He would argue that that offended something that was already determined by the Constitutional Court in respect of S v Bulwana (which could be cited as 1996 (1) SA 388 (CC)): The presumption of dealing in the Drugs and Drug Trafficking Act was unconstitutional. One was already going to have certain other statutory crimes if a person was dealing in drugs and was proved to be dealing in drugs. A person could go to prison for dealing in drugs without a licence, be it a medicinal licence, or a licence to deal in cannabis for adult use. One did not need a presumption of dealing snuck in via the back door by saying that if a person cultivated above a certain number of cannabis plants, it could not possibly be for personal or private use; a person would be “consuming too much cannabis” in the lawmaker’s eyes. Lawmakers were opening themselves up to constitutional challenge via what was “the sneaking of presumption of dealing via the back door”.

The piecemeal amendments of the various Acts of Parliament that were never intended to apply to the legitimate uses of cannabis were causing more problems. One saw that in what Mr Stone raised around the fact that licensed cultivators of cannabis were falling afoul of the law because SAHPRA had misinterpreted the interrelationship between the Drugs and Drug Trafficking Act and the Medicines and Related Substances Act. The Cannabis for Private Purposes Bill, even with the amendments, was a piecemeal step towards a regulated cannabis industry, and even a regulated personal and private use regime. It was better to acknowledge what had been done wrong, and not try to retrofit what had been done wrong. It was better to start again from the drawing board and get the Bill right.

Children had been raised a number of times. Mr Keichel did not think that any of the submissions said that one ought to be encouraging children to use cannabis or endorsing the supply of cannabis to children. What one needed to bear in mind was what Ms Clarke raised; specifically that one was often doing more harm than good by enforcing cannabis laws too strictly, with “children being children”. It was certainly not a justification to create a presumption of dealing. If a person was caught dealing to a minor, then that was a different story. One did not need to create a statutory presumption.

The speaker from MBSA might have stepped on toes, and perhaps his frustration shone through. Mr Keichel did not think it was necessary to get too defensive as a Committee, but he thought that the more constructive approach was to take heed of the frustration of a traditionally suppressed community.

The mandate of Parliament in this case was to legislate constitutionally and to reflect the will of the people. Civil society and business were, in the first and current round of oral and written submissions, united on at least most of the very important issues. There were divergences here and there, but on the whole, stakeholders were speaking to government with a united voice. Parliament needed to take heed of what was being said to it by the people who voted it into power. Insofar as Parliament was saying that it was going to pass that Bill “come hell or high water”, what it was saying was twofold: It was saying that it knew better than the people who were affected by the laws as to what was good for those people. Additionally, it was saying that if it was accepting of the fact that there were legitimate criticisms, these were things that would be determined by a court of law instead of in a participatory process. He wanted to encourage the Committee to take heed of the most recent submissions and the initial submissions, and to get things right this time around.

He reinforced what was said in C&A’s written submission on the exemption for cultural and religious communities. This was dealt with at great length in Prince I, the first judgement of the Constitutional Court, in 2002, specifically that it created a bureaucratic nightmare. It was completely unpolicable.

If he were to grow dreadlocks and start saying that he was a member of the Rastafarian religion, it would be difficult for any bureaucrat, whether part of the SAPS or some other government department, to contradict him just because he was white, or because of other arbitrary grounds. What was deemed to be good for a black Rastafarian must also be good for a white atheist, or for a coloured Christian. One could go into any sort of granularity of the rainbow nation; there were all kinds of beliefs in South Africa, and it could not be that one would offend section 9, the equality provision of the Constitution, by saying that some people could have more of something than others just because of their beliefs or the colour of their skin. It was unconstitutional and discriminatory. He therefore encouraged Parliament to look at section 36 of the Constitution, which was the rights limitation clause, and to draft a law of general application. Everybody would be subject to the same law without exemption.

Discussion
The Chairperson said that people must not put words into Members’ mouths. The Members did not use the words “come what may, we are going to pass this Bill”. The Committee said that it was its intention to pass the Bill this term.

Mr Keichel apologised and said sometimes nerves caused one to “speak a little bit out of place”.

Mr Swart said that the religious exemptions were issues that the Committee needed to concern itself with, and if it was creating a specified group of people with those exemptions, whether related to palliative care or religion. It was very important for the Committee to be fully aware of constitutional concerns. One did not want Parliament to be found wanting constitutionally. He thought the inputs that the Committee was hearing were very valid. There were continual concerns coming through about the constitutionality of the Bill. The Committee would have to satisfy itself in collaboration with the parliamentary legal advisors that the proposed amendments were constitutionally valid. This was given the fact that the Office of the State Law Advisor would have certified the Bill prior to the proposed amendments that the Committee had now considered.

He did not take offence to what was said previously to the Committee. What he did take offence to was the singling out of the Chairperson. He appreciated that there were a lot of frustrations from the communities. His aim was to try and bring a different perspective, because there were just as many members in the communities whose lives were ravaged by cannabis abuse. He did not think that perspective was being heard strongly enough. He appreciated the submissions made and the frustrations that had been expressed.

Mr Keichel replied that the constitutional concerns were absolutely fundamental. There were a variety of opinions. He was one lawyer out of many who had an opinion on the Bill. A different lawyer to him would have a different opinion. If one went to one state law advisor, and then went to President Ramaphosa’s legal advisor, one would have different opinions. He encouraged a pooling of the opinions to ensure that there was a coherent and unified approach to the Bill. One of the criticisms he encountered through speaking to civil society and business was the perception that the Committee had one opinion. However, one would get a different opinion from the Department of Trade, Industry and Competition (DTIC), from the Department of Agriculture, Land Reform and Rural Development (DALRRD) and other government departments. It was difficult for any one person to keep a finger on the pulse of what government policy actually was on this matter. It was an unfolding process.

Growers Club submission
Mr Mauritz Grobler, Growers Club Chairperson, noted he was a professional in information security, risk and governance, with a specific focus on confidentiality, integrity and availability of information. Within the context of the field of his expertise, he wanted to comment on what was said by COSATU and Karoo Bioscience. Firstly, COSATU and others mentioned the difficulties of compliance, while Karoo Bioscience mentioned the lack of quality control within a home grower or private club environment.

A quality control programme was essentially three things: 1) An agreement to a set of quality metrics; 2) the determination of methods to achieve those quality metrics; and 3) the monitoring of the programme’s applications to ensure those metrics. This could be achieved outside of the SAHPRA model. In starting the Holy Basil Cannabis Club, the Growers Club also faced similar challenges to government, as it wanted to ensure compliance over a large group of people who were dispersed across the country. In its previous submission, the Growers Club mentioned its technology platform to address that, and to address the concerns raised by COSATU and Karoo Bioscience. The Growers Club wanted to make that technology available to government, should it seek to provide a regulatory platform. It also wanted to give complimentary access to members of the public who wanted to govern their internal cultivation operations, and ensure quality for themselves.

FGA had mentioned that its previous submission was not responded to; he wanted to include the Growers Club into that pool. The Growers Club received no acknowledgement of its submission, and it could only hope that Members did ultimately consider its submission, since regrettably very few Members engaged it in questions.

Proposed Changes to the Bill
The Growers Club proposed certain amendments to the proposed wording of the Bill to provide clarity and to avoid uncertainty and inconsistency in the future as to the ambit of the Bill’s application, implementation and enforcement.

The second stated aim of the Bill in the Growers Club’s view was not sufficiently inclusive of all recreational users of cannabis. It proposed that the aim should be extended in its scope to read:

“To … provide for the cultivation, possession and supply of cannabis plants and cannabis by growers for religious purposes in adherence to the Rastafarian faith on behalf of its members, and for the members of recreational cannabis clubs.”

The wording as proposed by the Growers Club will, if accepted, bring social clubs whose practices “traditionally involve the use of cannabis plants or cannabis” within the meaning of a “cultural community”, as contemplated in section 1A(4). Recreational cannabis clubs would then be able to apply in terms of section 1B(a) and (b) to the Minister for the issuing of a permit.

If such application is approved the cultivation of cannabis plants and cannabis and the supply thereof to all the members of the club would be regulated by the conditions and restrictions that may be imposed in the particular permit. It therefore proposed that the following additional wording be inserted at the end of section 1B(11)(c), after the words “the Rastafarian faith”:

“.. and members of bona fide recreational cannabis clubs.”

It also proposed that a definition be adopted for recreational cannabis clubs in section 1 of the Bill:

“recreational cannabis club” means a club, non-profit organisation or voluntary association of consenting adults that share and pursue a common interest in the cultivation and recreational use of cannabis and who combine their cultivation efforts to produce cannabis and cannabis products for its members.”

It also proposed that clarity be provided in the definition of a “private place” by inserting the following wording at the end of the definition:

“… provided that such a private place may be shared with other consenting adult persons.”

Mr Grobler wanted to point out a thread running through the submissions. While everybody had highlighted key concerns that remained unmet in the Bill, the key ask from a few people had been to give someone authority to move the process forward, otherwise “we are going to get locked up in a bureaucratic nightmare for ages”.

In light of that, the Growers Club agreed that the cannabis process needed to be regulated. It offered its technology to facilitate that level of large-scale regulation should it be deemed necessary. It hoped sincerely that its comments would at least be considered, as the comments did further the scope of recreational cannabis use, or adult use, by not only allowing people of the Rastarfarian faith, but also people who adopt cannabis culture as a tenet of their lives to form communities and apply their communal bond that way.

Discussion
The Chairperson said that Mr Grobler’s submission made drafting much easier, in the way that he made his proposals in his submission.

Mr Swart asked if Mr Grobler considered clause 1A (commercial activities) in respect of recreational cannabis. If one looked at paragraph 1, it said that “subject to the enactment of national legislation, contemplated in subsection 2, commercial activities in respect of recreational cannabis are hereby authorised”. He asked if Mr Grobler would agree that it made no sense, because what had been said was that something was being authorised which was subject to future legislation. The Committee had asked presenters to comment on the two clauses on recreational use and commercial activities. Clause 1A said that commercial activities were authorised, but subject to the enactment of national legislation. Would he agree that that clause did not make sense, because it was anticipating future legislation?

Mr Grobler agreed that it was so and left matters in the same limbo as they were currently in. A concern from cannabis clubs was that there was significant interest from licensed parties to occupy the domestic market. When there was reference made to commercial legalisation, the Growers Club feared that this was taken away from the private club spaces, where members could care for themselves within the club model, to a model where it could only access cannabis via large registered entities that had paid millions to obtain that licensing. The fear was that leaving it to a later time left the risk open to cannabis clubs that their current right to privacy and community was not respected.

Theocracy Reign Order of the Nyahbinghi submission
Ras Hail Negus/Bonginkosi Blose, Elect of Records, Nyahbinghi National Council (NNC) South Africa with the Theocracy Reign Order of the Nyahbinghi being part of that organisation, presented.

The Nyahbinghi Church welcomes the initiative since the Bill was myopic in granting private use without due consideration as to where the person is obtaining the cannabis from i.e. not all consumers want to grow for themselves, others simply want to buy and use.

The Nyahbinghi Order notes:
• There was not adequate consultation.
• Various RasTafari individuals, mansions, houses, formations, organisations and multiple organs submitted.
• The Theocracy Reign Ancient Order of the Nyahbinghi (referred to as the Nyahbinghi Order) made written and oral submissions.
• Past submissions indicated the RasTafari community generally rejected the Bill as it stands.
• RasTafari advocated for total liberation of the plant in particular for those communities with a long recorded history of
traditionally cultivating cannabis which gives them the indigenous knowledge systems (IKS) rights to share in the commercial benefits of legal cannabis.
• The Nyahbinghi Order proposed an exemption as the only other viable alternative option to afford interim relief from the law for the RasTafari community to be able to use cannabis for sacramental purposes.

Commercialisation
The Nyahbinghi Order proposes:
• A special economic dispensation with regard to commercialisation e.g. licensing, trade, industry entry, special licence for RasTafari, IKS and AA groups; access to finance and land amongst other considerations.
• Empowerment stimulation packages for the beneficiation of the plant across many value chains.
• The lifting of existing barriers of entry to allow historically disadvantaged cannabis entrepreneurs to participate in the legal cannabis industry.
• Preferential rights as a form of reparation for damages suffered to assist RasTafari to enter the cannabis mainstream economy.
• Customs and trade barriers to discourage imports and international cannabis from dominating the SA market and prevent them prejudicing local previously disadvantaged cannabis farmers and traders.
• As a prerequisite, all licensed companies are to report on their overall practical and measurable commitment to empower the Rastafari church and other IKS communities.
• Applying BBBEE policy in the cannabis industry to secure meaningful participation of the historically prejudiced.
• Tax collected from commercialisation of cannabis should partly be redirected at development of the Rastafari church and other IKS communities with some partly towards harm reduction campaigns.
• A public/private Cannabis Trade/Advisory Council be set up for this commercialisation, with inclusion of RasTafari representatives. The primary task of this Council will be to oversee all industry/sector commercial activity and involvement countrywide to ensure the application of the special economic dispensation is met in accord with the country’s human resource development goals.

Exemption
The Nyahbinghi Order welcomes the exemption initiative. Yet it notes that the exemption is likened to the Jamaican Dangerous Substance Act. However, it wishes to raise the existing serious flaws and limitations in the Jamaican Act which does not afford the RasTafari community (and other IKS communities) special rights to shared commercial benefit of the cannabis plant as stipulated by the South Africa IKS rights law of 2019.

The Nyahbinghi Order therefore proposes the following should be considered:
• Redress the unrealistic proposed quantity limits as RasTafari use cannabis in many applications. This means all references to amounts of cannabis, possession thereof, trees planted etc. must be inapplicable to the RasTafari members.
• Definition of private space to include places of worship.
• The RasTafari unique Ital standard must be catered for like Hallal and Kosher standards
• Immediate release of all cannabis detainees and the expunging of all cannabis criminal records as well as the immediate scrapping of all cannabis active cases from the Court Roll and moratorium of all cannabis related arrests. Cannabis must be freed of criminal association and be viewed rather for its recreational, social, medical and economic benefits.
• Children under 18 years caught possessing and using cannabis should undergo counselling and rehabilitation programs and not be subject to imprisonment.
• The Nyahbinghi Order rejects the current proposal for the Minister to be the overseer of this exemption and related permissions as we believe this will overburden the ministry and delay the processing of applications. It proposes the exemption should allow for self-determined; self-regulatory mechanism which would stipulate Ital standard specifications and standard operating procedures, authorised regulatory authority, related representation, distribution and logistics mechanism.
• The Nyahbinghi Order be allowed to give further inputs on exemptions proposed to be relevant to its community.

The submission also covered the Nyahbinghi Order’s proposals on medical applications. In conclusion, it highlighted the following: Rescheduling of cannabis as an agricultural crop; the gross violations of the fundamental rights of the RasTafari; how the Rastafari nation had embarked on a process to self consult and come up with collaborative means of self governing
cannabis for the Rastafari community; a request for assistance from Parliament in order to consult nationally and conduct a regular census of the RasTafari community; and a request for further public consultation which is meaningful, to mitigate the flawed public consultation process (see submission).

Discussion
Ms W Newhoudt-Druchen (ANC) asked what IKS stood for, and what IKS rights meant.

Ras Hail Negus replied that IKS meant indigenous knowledge systems. IKS rights were the rights to share in the commercialisation of legal cannabis.

New Race Consciousness (NRC) submission
Mr Thulo Mpholo (also known as Ras Inity), NRC Secretary-General, said the NRC wanted to note that this parliamentary process took place on a very important day which was Africa Liberation Day. The NRC noted that the cannabis industry had the potential to unlock economic progress. With this progress of liberation, the 1854-1855 Berlin Conference could be reversed. South Africa was now in a position to capacitate bodies of the African Union together with civil society organisations. There was a lack of community-based health centres and community research centres.

On Purposes of the Bill
The bullet which reads, “provide for the cultivation, possession and supply of cannabis plants and cannabis by organisations for religious purposes in adherence to the Rastafarian faith, of its members” should be amended to read: “Provide for the protection of members and organisations of the Ras Tafari faith in respect of cultivation, possession and supply of cannabis in adherence to the Ras Tafari faith.” The NRC felt that that would ensure that the bullet was concomitant with the provisions of the Bill, because in its current draft, the provision noted that people were the “Rastafarian faith”; however, members are of the “Ras Tafari faith” and not the “Rastafarian faith”. Ras Tafari is the name of the central figure of the faith, namely the Divine Emperor Haile Selassie. The spelling “Rastafarian” was the corruption of a divine Ethiopian name.

The fifth bullet which states, “protect adults and children against the harms of cannabis” should be amended to read: “To educate adults and children about the responsible uses of cannabis”.

On 1A Commercial activities in respect of recreational cannabis
1A(3) which reads “due consideration should be given to (a) harm reduction” should be omitted because it defeats the very purpose and essence of the introduction of this Bill and that of marketing in the emerging cannabis/hemp industry.
On 1A(3)(b): The part which reads “demand reduction” should be amended to read “demand management”. Demand reduction does not augur well for businesses which aim to secure a substantial market share for competitive advantage.

On 1A (3)(c): “Public education and awareness campaigns in respect of the harms associated with recreational cannabis” should be amended to read “Public education and awareness campaigns in respect of the benefits and potential harms associated with recreational cannabis” in that the harms are mainly perceived and (in many cases) are not encountered.

Special Measures to accommodate Cultural or religious communities
• 1B (1)(a) which reads: “ An authorised representative of a cultural or religious community may, in the prescribed manner, make an application to the Minister for the issuing of a permit, which authorises that cultural or religious community to possess, obtain, supply and perform any other activity in relation to anything specified in subparagraphs (i) to (vii)” should be amended and read:

• “An authorised representative of a cultural or religious community may, in the prescribed manner, make a once off application to the Minister for the issuing of a permit, which authorises that cultural or religious community to possess, obtain, supply and perform any other activity in relation to anything specified in subparagraphs (i) to (vii)”.

• The reason for a once-off application was that the Ras Tafari had already indicated through research and consultation processes that if one applied to the Minister annually, it would subject the Ras Tafari way of life to bureaucratic processes which may encroach on the Ras Tafari way of life. That would be unconstitutional.

Commercial activities in respect of recreational cannabis
• 1B (1)(b)(vii) which reads “give estimated quantities of – (aa) cannabis plants that are required to be cultivated per cultivation season” & “(bb) Cannabis that is required for a four months period for the purposes of cultural or religious practices by its members, and specify the manner in which such quantities have been calculated with reference to the number of adult members in item (vi)” should be omitted.

• These parts needed to be omitted because estimates can never be accurate and in the process members of the Ras Tafari community may be adversely affected and be in conflict with the law and the purpose of the Bill to protect the Ras Tafari community would have been confounded. The Ras Tafari community has not calculated spiritual gifts and the Department of Justice and Correctional Services should not encroach and impose itself on the Ras Tafari faith practices to the effect of altering them, this would be unconstitutional.

• 1B (3)(b)(ii), which reads: “A permit contemplated in this action – must be issued in the name of the authorised representative of the cultural or religious community” should be amended to read “A permit contemplated in this section – must be issued in the name of the authorised cultural or religious organisation and that of the representative of the cultural or religious organisation or community”.

• 1B (7)(b)(iv)(cc) which reads “ The Minister may in relation to subsection (1)(c)(viii), specify conditions, restriction, obligations or requirements which must comply with to – restrict access to land or a dwelling which is to be used for cultural or religious purposes” should be omitted because on the Church grounds and place of worship of the Ras Tafari accommodates all and does not restrict in any way access to anyone. To the Ras Tafari, Zion gates are open wide for all.

• Everywhere where there is mention of Rastafarian that should please be replaced by Ras Tafari.

Religious and cultural exemption extended to student organisations at higher learning institutions
• The Bill should exempt Members of the Ras Tafari academic community and Ras Tafari student organisations to possess and use cannabis when facilitating religious and cultural teaching and learning in public and at institutions of learning.
• The Bill Should exempt Members of the Ras Tafari academic community and student organisations of Ras Tafari to exchange cannabis for remuneration or reward on the campus premises.

• The Bill should exempt Ras Tafari student organisations to use cannabis in their use of religion and culture to conduct fundraising activities on campus.

• The Bill should exempt Ras Tafari student organisations to cultivate cannabis on designated premises of different institutions of learning or on organisations for religious and cultural purposes.

• The Bill should exempt Members of Ras Tafari student community and Ras Tafari student organisations to possess cannabis in transit from one campus to another for purposes of an exempt Ras Tafari event.

Discussion
There were no questions or comments.

Cannabis Development Council of South Africa (CDCSA) submission
Mr Garreth Prince, CDCSA Chairperson, noted that Justice Sachs once said that rights must fit the people, and not the people the rights. The cannabis community was aware that a Bill was being forced on it without its proper input. Mr Prince wanted to register the CDCSA disappointment in the lack of interaction from the Committee with the cannabis community. The cannabis community had felt this lack of interaction right from the time that the Bill was published.

CDCSA must right at the outset register its objection to the abject lack of public participation and the failure of the National Assembly to abide by its own public participation model. Cannabis continues to affect the lives of millions of people yet Parliament blatantly discriminates against the cannabis community and continues to ignore the existential reality of the cannabis community, in particular the previously disadvantaged communities in general. Parliament’s duty to inform, educate, workshop and feed back to communities in relation to cannabis is ignored, whereas the cannabis community remains a severely traumatised and victimised community.

1. The recommendation that DoJ&CD received from the judge as well as other members from civil society was that cannabis be regulated in the same way as alcohol or tobacco. CDCSA does not sense the impact of that recommendation in the proposed amendments.

2. The Bill still proposes to regulate cannabis vastly differently from the manner in which alcohol and tobacco is regulated, and this has obvious quality implications, in that cannabis, and cannabis users, are unfairly discriminated against by being subjected to much stricter regulation.

3. The proposed amendments to regulate commercial activities around cannabis flows from an improper and unlawful interpretation of the duty and responsibility of the DoJ&CD. The Constitutional Court imposed upon the DoJ&CD the obligation to ensure that cannabis is regulated in a manner that respects the whole Constitution of South Africa, even though the court only found unconstitutionality on the ground of privacy. Parliament must respect the fact that South Africa's laws operate interrelatedly, interdependently and holistically. Parliament must therefore ensure the Bill respects the privacy provisions, but must also ensure that the Bill does not violate the rest of the Constitution.

4. The Bill must therefore ensure that cannabis, at the very least, is treated in the same manner as alcohol or tobacco and may not subject the cannabis community to stricter regulatory measures. The penalties and offences created under the Bill must accord with those in place for alcohol and tobacco, but as it stands the Bill proposes a much stricter penal regulation for cannabis which is unlawful and puts the Bill in danger of being unconstitutional.

5. The objective of the Bill which intends to only provide for the religious observations of members of the Rastafari way of life unfairly discriminates against indigenous cultures, and should include those indigenous cultures which have a history of using cannabis for religious and/or cultural purposes. Sections 15 and 31 of the Constitution protect religious and cultural practices and the Bill should do the same. The manner in which the amendment is structured violates equality as well as the notion of restorative justice. The affirmative measure of the amendment is applauded but the remedial action cannot be unfairly discriminative.

6. The right to decide what medicine or medical procedure to use is a very important constitutional protection and government may not and cannot dictate to citizens what medicines they can use or what medical procedures to follow. The right to use cannabis for palliative or medicinal purposes is therefore protected under South Africa’s Constitution and the Bill must remove, and not create, obstacles to the exercise of this right. It follows that the inclusion of the right to use cannabis for palliative and medicinal reasons is supported, even though it is technically not required because the right is already protected.

Definitions and Interpretations
7. The Portfolio Committee recommendation to change 1% to 2% in section 1B is arbitrary and does not speak to South African conditions. It would make much more sense if that is changed to 3 to 5% because the THC content of landrace cannabis is usually between 3 to 5% THC. The purpose must be to ensure that local landrace cannabis is not unduly restricted especially for commercial or industrial activity. Nothing prevents Parliament or South Africa from having a regulatory regime that allows that. International law and recent developments make it abundantly clear that South Africa would not be in violation of any Treaty if the level is moved to 3 to 5%.

On the THC limits not speaking to South African conditions, Mr Prince added that previous speakers mentioned that several cultivators of hemp ran the risk of having to destroy their crops because of South Africa’s climatic conditions.

8. The recommendations in section 1(c)(iii) and (iv) are subject to the same critique. It is an offence to drive with a blood alcohol level above 0.05%. The appropriate studies must be conducted for cannabis otherwise the figures are simply arbitrary. The measures for regulation must accord with science.

9. CDCSA proposes that those who want to export hemp products abide by the 0.02 recommendations but for South African industrial and medicinal purposes, the 3 to 5% levels should be abided by for landrace cannabis to be used for industrial and medicinal purposes.

10. The proposed limitation on height of plants is arbitrary and does not reflect the South African reality where cannabis plants can grow to heights of 3 to 4 metres.

11. “Possess in private” should not include measures that treat cannabis as dangerous or dirty, justifying that it should be shielded from public view. If those same measures are not in place for tobacco and alcohol, then they are unfairly discriminatory.

12. The proposed limits on traffic-able quantity are also arbitrary and imposes regulatory measures on cannabis that are not similar to those imposed on alcohol or tobacco users and are therefore unfairly discriminatory.

13. The definition of remuneration as “any form of compensation…” is unlawful because restrictions on rights should be narrow, not wide, and the limitation should therefore be specific and not general.

Commercial Activity in Respect of Recreational Cannabis
14. There is a distinct contradiction in the manner in which the DoJ&CD proposes to deal with the commercial activity around cannabis. The proposed regulatory framework puts undue restrictions on activities that flow naturally from having the right to possess, use, and cultivate cannabis. Those same restrictions do not apply to other recreational substances, therefore the proposed restrictions are unlawful and unconstitutional.

15. The definition of commercial activity as “any activity that…” is unlawful because these definitions cannot be broad and general; they must be narrow and specific. South Africa’s laws are very clear in this respect. Limitations on rights must be narrow, but constitutional guarantees must be broad. The manner in which recreational use is understood is also problematic as it denotes people’s usage of cannabis as something that must be hidden from public view as if it is something undignified. Again, this is not how alcohol or tobacco is treated.

Special Measures to Accommodate Religious or Cultural Communities
16. CDCSA supports the idea that affirmative action or special measures accommodate religious or cultural communities that have cannabis as a sacramental or cultural object. Restorative justice measures should however not result in further undue or unfair discrimination. Care must be taken to ensure that opportunities are available for all who want to operate in the cannabis space. Collaborative measures should therefore be encouraged to ensure that restorative justice is accomplished whilst not hampering progress of the cannabis industry. For that reason, it simply cannot be only the Rastafari community that is acknowledged but also Indigenous cultural communities as well as traditional healers.

17. To that extent, CDCSA supports and endorses the recommendations made by the Rastafari Human Rights Institute on exemptions as a special measure for restorative justice purposes. CDCSA highlights the pitfalls mentioned therein on having too restrictive a regime in relation to evaluative measures for registration, membership, children, legal quantities, diversion and punitive measures; amongst others. CDCSA stresses the fact that the cannabis community had to operate underground or in the shadows for the past 100 years, and to come into the light of legality will not be an overnight thing. The requirements for compliance should take note of this and not set unrealistic expectations.

(Due to time limitations, points 18 to 21, 25 and 27 to 29 were not presented orally.)

Prescribed Quantities for Personal Use by Adult Persons
22. The right to use cannabis for medicinal purposes flows from the right to have autonomy over one’s body and for that reason, one should not require authorisation from anybody to use cannabis for palliative or medicinal purposes. The right to use cannabis must include the right to use it for medicinal or palliative purposes. Section 2(4) is thus superfluous.

Cultivation Offences
23. There is an inherent contraction in this section, in that it is counterintuitive to the objectives of the Cannabis Master Plan. South Africa must encourage everyone to plant as many trees as they can in order to meet people’s needs and any limitations on cultivation defeat that objective.

24. Section 3(2)(a), which makes it an offence to make cannabis accessible to a child, does not take into account the culture of indigenous communities, including Rastafari for whom cannabis is cultural and sacramental. This provision will surely be challenged as unlawful, apart from being insensitive.

Cannabis Offences
26. The same critique (i.e. that the amounts are arbitrary and were not workshopped or discussed with the cannabis community) as above applies to these provisions, and also in relation to smoking and consumption offences.

Expungement of Criminal Records for Cannabis Offences
30. This is the least the government can do for the cannabis community, and the automatic expungement of records must be applauded. CDCSA is opposed to section 8(2)(a)(iii) and section 8(2)(b) because it should not be expected of citizens to make an application in writing to the Minister or the DoJ&CD to have convictions made under unlawful presumptions expunged. These records should be automatically expunged.

Discussion
Mr Swart thanked Mr Prince; it was always good to engage with him because Mr Prince was an expert on many of the issues at hand. He asked Mr Prince to expand on his concerns about the application of restorative justice. As a trained lawyer, Mr Prince did touch on his view of section 1A, which dealt with the commercialisation of cannabis. That section said that commercialisation was “hereby authorised subject to other legislation” – Mr Swart asked if Mr Prince agreed that it did not quite make sense.

Mr Prince replied on restorative justice that it was a fact that for the past 27 years, government had struggled to provide for the basic needs of South Africans. It had always been CDCSA’s contention that cannabis allowed government to provide within those needs in a sustainable, reliable and renewable manner. Therefore, CDCSA was saying that cannabis must be the prime substance that was used to attain the objectives of restorative justice. Dignity was very important in the lives of everybody. In the South African context, equality was also very important; that was why equality, freedom and dignity were considered the fundamental norms of South Africa’s constitutional society. A person’s dignity or equality means very little if they are hungry, do not have a house, or do not have clothes on their back. CDCSA was saying that cannabis allowed government to provide all of those basic needs in a manner that would put South Africans to work, keep South Africans out of jail, and simultaneously protect South Africa’s environment. The environment was seldom factored into discussions. The environment was the one thing that everyone had in common, whether one was “a racist or an activist”. Everyone needed to preserve the environment for future generations, and cannabis assisted in doing that.

When it came to commercialisation, CDCSA did not militate against the harms caused by substances through penal or criminal regulation. The answer to that question was education. Tobacco and alcohol were “exponentially more dangerous” than cannabis. However, alcohol and tobacco were freely available in South African society. CDCSA did not downplay the impact of substance use and abuse of people in South Africa. But the point was that criminal regulation should not be used to remedy those concerns. Educational measures needed to be used, and therefore there was a great duty on the part of Parliament to ensure that the citizens of South Africa were educated on the impact of cannabis on human society as well as the economy.

CDCSA felt that such measures had not been adhered to, and much more could be done. South African law clearly stated that if either the National Assembly or the National Council of Provinces (NCOP) failed in public participation, then Parliament as a whole had failed. In CDCSA’s initial submissions, it stated that the section 75 designation of the Bill was incorrect, and that the Bill was therefore in danger of being unconstitutional simply due to that point, and because of the lack of public participation.

Even for the proposed amendments to the Cannabis Bill which were the focus of today’s public hearing, CDCSA still felt that there had not been adequate public participation on these issues. He recalled a statement that the Chairperson made about how the Committee must “rush slowly”. Instead of trying to rush the Bill through Parliament, there was a need to go back to the drawing board to ensure the Bill did not get caught up in litigation challenges, which would “most definitely be the case” if the Bill in its present form was put forward by the Committee.

The inputs from civil society and those who have been the most affected on this matter must be taken into account. Serious attention must be paid to those concerns to ensure that this was a Bill for the people and by the people, and that the people’s Parliament did whatever was in its power and more to ensure that the Bill became a piece of legislation that everybody in South Africa could be proud of. This piece of legislation could then also be something that the rest of the world could look upon with envy, as South African society would be one that finally managed to get it right in respect of restorative justice, and improving the dignity of South African citizens by providing food, shelter, health, education and welfare for all people.

Rastafari National Council of South Africa (RNC) submission
The comments from the RNC were made through the forum of the Rastafari Ganja Council which Ras Sandile, RNC Secretariat member, presented. As per the RNC’s Rastafari National Consultative Conference on 23-24 April 2022 in Eastern Cape, where it resolved in the presence of eight out of nine represented provinces and 18 active Rastafari organisations, the Rastafari National Council mandated the Rastafari Ganja Council to continue its work of collecting and facilitating Cannabis Bill submissions from all mansions and organisations of Rastafari.

The RNC has noted that the Bill is not aligned with the UN Recommendations on Cannabis Regulations, as well United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP) which is a UN General Assembly resolution on human rights adopted by the United Nations in 2018. It protects and promotes religious and cultural rights as well preferential commercial benefits to previously marginalised communities who were previously prohibited and prosecuted for partaking in commercial activities to sustain their livelihood. Such communities should be the first to benefit from job creation within the cannabis industry.

Comments
• No limitations on the cultivation, possession and supply of cannabis or the imposition of prescribed quantities of cannabis, cannabis plants or cannabis plant cultivation material as part of religious and cultural exemption. Such limitations will defeat the very purpose of religious and cultural exemption. Ras Sandile added that proper consultation needed to be done, having noted that the RNC represented seven churches and 18 organisations; it showed that even with the consultation that was done nationally, more time was required to be able to reach all Ras-Tafari.

• Expungement of criminal records related to the possession of cannabis and Moratorium on all arrests related to cannabis with public declaration by the government of SA to the Ras-Tafari community for the unlawful arrest on Ras-Tafari faith in the Constitution of a Democratic SA. Ras Sandile added that there also needed to be a form of compensation for those who suffered because they were taken away from their livelihoods, and whose families and community image was affected. Many of those arrested on cannabis-related charges were those of the Ras-Tafari faith. That also coincided with what another speaker raised on Ras-Tafari getting special treatment. “No one has suffered for cannabis like Ras-Tafari in South Africa”. No one should try to put oneself within the same context as Ras-Tafari, and any exemption given to Ras-Tafari is also extended to IKS and cultural groups. That was why the RNC’s submission also noted religious and cultural aspects.

• Rastafari to be prioritised in the commercial benefits of cannabis. Support Rastafari farmers and entrepreneurs to sustainably deal with the growing, trading and processing of cannabis for commercial benefits. Protection against big multinational capitalist individuals and companies conducting anti-competitive behaviours.

• The negative perception of cannabis as contemplated in the Bill where the perceived or potential harms of cannabis are presented as “the harms of cannabis” or “the harms associated with recreational cannabis” and therefore the subsequent need for “harm reduction” and “demand reduction”, all of which are not based on proven facts. The last being in contradiction to the purpose of the Bill which is to “provide for commercial activities in respect of recreational cannabis”.

• Recognition of community-based research and innovation to prove the hypothesis of Ras-Tafari indigenous knowledge systems and herbal mixtures with application of cannabis to prevent corona, heal asthma, manage mental disease anxiety disorders, and exit addiction to harmful opioids.

• The classes of offences amounting to 15 years of imprisonment as suggested in the Bill and as well as the unspecified fines which are likely to be beyond the means of the unemployed citizen are a great disadvantage to many cannabis users many of which many still require public awareness campaigns on the implications of the Bill to their livelihoods since rural and cultural communities might not always be commercial oriented but exchange or sell cannabis in large quantities among themselves for survival. Prison time should only apply to adverse offences as contemplated in Class A offences.

• The recognition of the Rastafari National Council as the official Statutory Body for all things related to Cannabis for the Rastafari Nation in South Africa and the Rastafari Ganja Council as the primary economic development entity for cannabis commercialization within the Rastafari community, with a mandate to educate, regulate and protect the interest of the Rastafari Nation in consideration of the rights of the broader South African community in regards to perceived Cannabis harms and inclusive participation in the cannabis economy. Ras Sandile added that the Rastafari community could self-regulate, as it had a registration system, and a membership system. The registration system would make it easier to identify who was part of the Rastafari community.

Conclusions
The issuing of an exemption to religious and cultural communities should not be viewed as an end to communities’ struggle since the recognition of Rastafari rights cannot be administered through such an approach which is rather a means to an end and the first step to the Rastafari community being given the freedom that is due to them under the Constitution.

Cannabis Bill way forward
Mr Makubela Mokulubete, State Law Advisor, DoJ&CD, said that he worked with State Law Adviser, Mr Sarel Robertse, on the Cannabis Bill. Mr Robertse was unable to connect. Mr Mokulubete was able to take any instructions from the Committee on the Cannabis Bill.

The Chairperson suggested that the Committee should give Mr Robertse this week to summarise and respond to the submissions on the Cannabis Bill. The Department could brief the Committee on this on Tuesday 31 May 2022.

The Committee agreed.

Mr Mokulubete replied that the Department would be able to brief the Committee on 31 May on its responses to the submissions.

The Chairperson asked if the Department could work on the formal proposed amendments as it worked on its responses to submissions. He wanted the Committee to move towards finalising the Bill, as it had been outstanding for some time.

Afternoon session

Land Court Bill [B11-2021]: response to submissions
Mr Henk Du Preez, DoJ&CD State Law Advisor, told the Committee that the Department had summarised all of the submissions on the Land Court Bill. The Department had prepared two separate documents. The one it would present in the meeting was where it summarised the comments received, and where the Department conceded to the proposals made. The Department would need to present to the Committee the proposed amendments to the Bill it would be making as a result of comments received.

Mr Du Preez recapped the contents of the Land Court Bill. The Land Court Bill was, to a large extent, based on the Superior Courts Act that created South Africa’s court structure. Similarly, the Land Court Bill, to a large extent, did not deal with jurisdiction. The Bill created the envisaged Land Court structure. If one wanted to find out what the jurisdiction of the superior courts were, one needed to look at different pieces of legislation. In the Schedule to the Bill, there were a number of pieces of principal legislation being amended to bring those disputes that may arise from the operation of those Acts under the jurisdiction of the Land Court. The Bill was laid out as follows:
- Chapter 1: Definitions, Purpose and Objects
- Chapter 2: Establishment, Composition, Seal, Seat and Jurisdiction of Court
- Chapter 3: Judges, Officers and Assessors of Court
- Chapter 4: Court Proceedings (divided into six parts)
- Chapter 5: Land Court of Appeal (divided into two parts)
- Chapter 6: General Provisions.

Chapter 4 dealt with the Land Court itself. It dealt with the institution of proceedings in Court; the rules, powers and functions of Court under other legislation, intervention, right to appear, legal representation, appeals and judgement by default; among others. In the submissions, comments were made that there were not only nine pieces of principal legislation dealing with land matters; there were in excess of 33 pieces of legislation. DoJ&CD needed to explain to the Committee that after thorough consultation with colleagues in other departments, the decision was made to choose at this stage only nine pieces of legislation. That was important, because one did not want to overburden the Court at this stage. The Department had envisaged a gradual increase of the jurisdiction of the Court. In three or four years’ time, three or four additional pieces of legislation might then be amended to include those disputes arising under the administration of those pieces of legislation under the jurisdiction of the Land Court.

The other aspects that Chapter 4 dealt with were: Witnesses, examination by interrogatories and admissibility of evidence; and processes of Court and Offences. There were provisions that were fairly similar to the Superior Courts Act.

Chapter 5 also had similar provisions to those in the Superior Courts Act dealing with: Establishment and status of the Court, composition, etc. The chapter also dealt with rules, jurisdiction, appeals. Chapter 6 dealt with general provisions.

Table 1 in the summary of comments showed two general comments:

Agri SA commented that the Preamble should also refer to section 34 of the Constitution. Mr Du Preez said that when the Department appeared before the Committee with the first set of proposed amendments, it would not necessarily have proposed amendments to the Preamble. Traditionally, the preamble and index were usually amended last by the Committee because it needed to see what the final contents of the Bill would be.

The Legal Academics commented that the Court should be enabled to refer matters of suspected corruption to the National Prosecuting Authority (NPA) for prosecution.

Mr Du Preez presented Table 2, which summarised the submissions on each clause of the Bill (see document for full details).

• Clause 1: Definitions
Council for the Advancement of South African Constitution (CASAC), Land Claims Court (LCC) and Rand Water made a submission.(also referred to as a proposal).

• Clause 3: Establishment
CASAC, the LCC, Agri SA, and the Legal Academics made a submission and the proposals were similar or the same.

• Clause 8: Appointment of Judges of Court
The SA Institute of Race Relations and Legal Academics made a submission.

• Clause 9: Tenure, remuneration and terms and conditions of appointment of judges
The LCC and Agril SA made a submission.

Mr Du Preez recalled that the Committee received an additional submission from the LCC where it proposed that a transitional provision should be included in the Bill to cater for the existing judges of the LCC. The Department would bring a proposed amendment on this to the Committee.

• Clause 13: Institution of proceedings
AfriForum, LCC, Agri SA, Agricultural Business Chamber of SA (Agbiz) made a submission.

• Clause 14: Rules governing procedure of Court
Agri SA made a submission.

• Clause 16: Intervention to proceedings before Court
The LCC made a submission.

Clause 17: Powers of Court on hearing appeals
The LCC and Agbiz made a submission.

• Clause 19: Witnesses
The LCC made a submission.

Mr Du Preez added that the Department provided proposed wording in its summary. This was not its final proposal as it would like to have another look at everything before it presented the proposed amendments to the Committee.

• Clause 21: Examination by interrogatories
The Legal Academics and the Western Cape government made a submission.

• Clause 22: Admissibility of evidence
AfriForum, the Banking Association South Africa (BASA), Agri SA and Agbiz made a submission.

• Clause 26: Referral of particular matters for investigation by Referee
AfriForum and Agri SA made a submission.

• Clause 27: Pre-trial conference
The LCC and Agri SA made a submission.

• Clause 28: Court orders
LCC, Agri SA, Legal Academics, Agbiz and the Western Cape government made a submission.

• Clause 29: Variation and rescission of orders of Court
CASAC made a submission.

• Clause 31: Mediation
The LCC and Agri SA made a submission.

• Clause 32: Arbitration
CASAC, the LCC, Agri SA, Agbiz, the Legal Academics, the Legal Resources Centre, Prof Butler and the Western Cape government made a submission.

Mr Du Preez added that Prof Butler had provided two options in his submission. DoJ&CD wanted to request the Committee to allow it to address arbitration when it submitted the proposed amendments. Mr Du Preez requested to step off on the submission made by Prof Butler. The reason the Department inserted it into the document was because it had taken note of the concern that had been expressed. DoJ&CD wanted to reconsider and come back to the Committee.

• Clause 33: Settling matters out of Court
AfriForum, Agri SA and Agbiz made a submission.

• Clause 34: Establishment and status of Land Court of Appeal
AfriForum and the Legal Resources Centre made a submission.

Mr Du Preez added that this matter, together with arbitration, was something DoJ&CD was still considering and conceptualising. It would submit proposed amendments to the Committee.

• Clause 36: Appointment of other judges of Land Court of Appeal
The SA Institute of Race Relations made a submission.

• Clause 37: Tenure, remuneration, conditions of appointment of Land Court of Appeal judges
The Western Cape government made a submission.

• Clause 38: Officers of Land Court of Appeal
The Western Cape government made a submission.

• Clause 42: Jurisdiction of Land Court of Appeal and power to hear appeals
AfriForum made a submission.

• Clause 43: Appeals
The Western Cape government made a submission.

• Clause 46: Land Court of Appeal
AfriForum and CASAC made a submission.

• Clause 47: Costs
AfriForum, the LCC, the Legal Academics and the Western Cape government made a submission.

• Clause 49: General provisions applicable to courts established by Act
The LCC made a submission.

• Clause 51: Transitional arrangements
The LCC and the Western Cape government made submissions.

• Clause 53: Regulations
AfriForum, AgriSA, Agbiz, Legal Academics, and SA Institute of Race Relations made a submission.

• Schedule
The Land Access Movement of South Africa (LAMOSA) made a submission.

Mr Du Preez reminded the Committee that the Schedule contained other pieces of legislation to be amended in order to ensure that the disputes arising from the administration of those Acts would fall under the jurisdiction of the Land Court.

Discussion
The Chairperson thanked the Department for its work in summarising the submissions. He asked about the Land Court of Appeal, vis a vis the Supreme Court of Appeal (SCA), and the powers of the SCA which were in the Constitution, and the jurisdiction of the Land Court. If there was a policy agreement on the way forward, he thought that it would address a lot of the Department’s workload in a positive way. There was a view that the jurisdiction of the SCA was in the Constitution, and therefore powers of the SCA could not be taken away or be amended by legislation without a constitutional amendment.

Mr W Horn (DA) said it was easy to follow where the Department agreed with the submissions. The two issues the Chairperson raised were not completely clear given that the Committee was still to see the formal proposed amendments. The DoJ&CD submission was a bit complicated, in the sense that it seemed as if the Department was still looking to afford the Land Court of Appeal some authority without the latter circumventing or excluding the SCA. He was very interested to see the format of the Department’s proposal.

On arbitration: It was to be welcomed that the Department agreed that some of the current proposals around arbitration needed to be fine-tuned. But for the Committee to ultimately see if it satisfied the criticism, one needed to see the formal proposed amendments. He agreed with the Chairperson that many hours of work had gone into the processing of the public submissions up to the point where the Committee was now.

Mr Swart said the jurisdiction of the Supreme Court of Appeal was a concern that was raised from the start. The Committee’s concern was that taking away from the jurisdiction of the SCA could only be done by an amendment to section 168 of the Constitution. The Committee welcomed the Department’s concession on that point, and that it would look into the wording. He thought that it was very clear where the Department might have erred to say that the jurisdiction could not be limited, but the jurisdiction of the SCA could be limited. That might not be desirable, but it could be limited to an amendment of section 168. Without a constitutional amendment, that could not be done, which was why he was pleased that that concession had been made.

Discussion was needed on the role of the Land Appeal Court, because there was now another layer of appeals. He appreciated the sensitivity to land-related matters. One did not want to have endless appeals where one had the Land Court, the Land Appeal Court, the SCA, and the Constitutional Court possibilities. He thought that this was where the Committee would need to have a motivation as to what is the need for a designated Land Appeal Court, even though he was not disputing that there could be a need for a designated Land Appeal Court. The concern was that it seemed that there was a Labour Appeal Court, a Competition Appeal Court, and now a Land Appeal Court. The first two courts had the jurisdiction taken away from the SCA through an amendment to section 168 of the Constitution. Should there rather not just be chambers at the SCA where there were judges that dealt specifically with these issues? That was a broader policy discussion that one could possibly have, that one would have a Land Appeal Court chamber at the Supreme Court of Appeal dealing with these matters where there were specialist judges of appeal that were knowledgeable about land matters to avoid these levels. But that was a policy consideration. He looked forward to further engagement and discussion on that. He thanked the Department for its work so far.

Ms Newhoudt-Druchen thanked Mr Du Preez and his team for the hard and excellent work that had been done. She appreciated the pace at which Mr Du Preez took the Committee through the document. She asked that the working document of the Bill clearly show what should and should not be amended.

DoJ&CD response
Mr Du Preez noted that there was still a document coming to the Committee for discussion where the Department did not agree with the submission comments.

When the Department was ready to submit a working document of the Bill to the Committee, it would clearly indicate what it proposed should be amended, and what should not be amended. As soon as the Committee approved that document, the Department would prepare formal amendments to the Bill itself to be approved by the Committee.

On the concerns raised by the Chairperson and Mr Swart, Mr Du Preez replied that the Department did not have final answers at this stage. The Constitution was clear – the SCA was the court of appeal from the higher courts, except in two issues, namely labour and competition. The Department heeded the concerns that one would want to avoid diluting the jurisdiction of the SCA. The proposal for possible policy discussions about different chambers in the SCA with judges who were experts in specific matters was interesting. He reiterated that the Department did not have final answers at that stage. It would like to come to the Committee with a working document that would express the concerns raised by the Committee.

The Chairperson said that in the international world, especially in arbitration, certain norms and standards had been developed. For instance, generally in commercial arbitration, the arbitration award was equivalent to an Order of Court. There were limited ways in which the court could review that, which would include issues such as irregularities and clear violations of the law. There was a way in which arbitration awards were viewed internationally. A clear departure from that would create certain problems. He asked if the Department could look at those issues more closely.

Land Court Bill: way forward
The Chairperson asked if Members wanted to take a break before moving to the Department’s second document, which was 42 pages long.

Ms Newhoudt-Druchen said that she did not have that document. Did all Members receive it?

Mr Swart asked if the Committee be sitting until quite late today. Not that that was a problem, but there might be matters he needed to attend to. He appreciated the urgency with which the Committee needed to deal with the Land Court Bill.

Mr Du Preez replied that he was under the impression that the Committee would be sitting the following day. The document was finalised, but the team still needed to edit the document, hence it did not submit the larger document to the Committee but only the shorter document. Mr Du Preez apologised for not being able to submit the larger document.

The Chairperson said that was fine. It meant that the Committee could not take the matter further today. He asked if Mr Du Preez could finalise that document, because on the Committee programme, it was planning to finalise the Land Court Bill by 8 June 2022.

Mr Du Preez wanted to err on the side of caution. Personally, he was concerned about “putting his head on the block” for that deadline. What would take a lot of time was for the Committee to consider the Bill clause-by-clause, the working document that the Department would prepare for the Committee, and go through the amendments to the Bill. He did not know if the days the Committee had set aside to consider the Bill were half-days or full days. This was the first meeting after the briefing and public hearings, and the Department was only at the stage where the Department was responding to comments. The Committee had not started with the clause-by-clause consideration of the Bill. He was concerned that the Department might not make the Committee’s deadline.

The Chairperson asked how many days were reserved for discussions on the Bill.

Mr Siyabamkela Mthonjeni, Committee Secretary, replied that the Committee was left with five meetings after 24 May 2022. It had been anticipated there might be changes from the plan that emanated from proceedings.

The Chairperson suggested that the Committee process the Bill normally. It would be good if it was able to pass the Bill this term, but if not, the Committee would move the Bill to the third term.

Mr Swart wanted to make the same point as the Chairperson. He appreciated that there was a set deadline, but it could be that the Committee needed to extend that. Even in the Chief Whips’ meeting, there was an indication from the Programming Committee that committees might be applying to sit during the constituency period should the need arise. That permission would be considered. He agreed that the Committee could see how things went with the processing of the Bill. The Chairperson made a critical point – it was not five days per Bill, but five days for two bills.

The Chairperson said that the Committee would make an assessment towards 8 June. The importance of having deadlines was that it made one work in a structured way. The deadlines were important, but they were not set in stone. The Committee created deadlines so that it was able to say at the end of each term what it was able to achieve and what it was not able to achieve. It did not mean that if the Committee was not able to pass these Bills this term, then the “sky would fall”. It was always important that the Committee set timeframes for itself so that it worked within a project type of setting. It would then be able to measure if it could meet its set deadlines. It was dealing with two critical bills, and it would do what it could. It would push itself until 8 June; if it was able to pass the bills, then well and good. If not, it would deal with the bills when it came back. He was generally hesitant to take the constituency period (because one had to get parties to agree), unless it was a bill with a Constitutional Court deadline, or unless there was a serious reason a bill required meeting during the constituency period.

Members agreed that that was in order.

The Chairperson’s understanding was that the Committee had permission to sit during tomorrow's plenary. It would go through the document from the Department on 25 May and take it from there.

Ms Newhoudt-Druchen asked if Members could have the document by that night.

Mr Du Preez replied that he would try his best, but he was unsure if he could submit by 17:00 or 18:00. He needed to clean up the long document which might take a while.

The Chairperson suggested that Mr Du Preez submit the document to the Committee by 21:00, because it helped with the discussions if Members had the document and had gone through it. It would not help if the Committee met on Wednesday 25 May having not read the document.

The meeting was adjourned.