Cannabis for Private Purposes Bill: deliberations

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Justice and Correctional Services

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

The Portfolio Committee on Justice and Correctional Services convened on a virtual platform to consider and discuss the comments made by the National House of Traditional and Khoi-San Leaders (NHTKL) on the Cannabis for Private Purposes Bill.

The Committee was of the view that the inclusion of clause 1(2) of the Bill implied that this Bill would now have to be referred to the Joint Tagging Mechanism (JTM) for a change of tagging. The nature of the Bill would now be changed from a s75 bill to a s76 bill. Based on that context, Members wanted to know whether the Committee could still proceed with their deliberation on the Bill.

The Committee was cognisant of the potentially harmful effects that the consumption of cannabis could cause, but also highlighted the many cultural and religious practices that also used cannabis. Members believed that the Bill should not hamper such practices, and should make exemptions where relevant.

The tetrahydrocannabinol (THC) level, or percentage, in cannabis was discussed, with Members suggesting that the percentage in the current legislation should be reviewed. They were uncertain whether the change of the THC percentage in this Bill would affect other relevant legislation. They asked whether the Bill should include an empowering clause which explicitly stated that the Bill at present would supersede other legislation.

Among other issues, Members sought more information on how enforcement of access to cannabis could be implemented on communal land, whether the current Bill confined religious grounds only to Rastafarians, and the Department’s measures to regulate cannabis in the interim. One Member expressed his particular concern at the feasibility of the requirement in the regulations for an eight-foot being implemented in poor rural areas.

Meeting report

The Chairperson said the agenda of the meeting was for the Committee to receive a briefing on the Cannabis for Private Purposes Bill. It had received comments from the House of Traditional and Khoisan Leaders, which the Department would take the Committee through.

Cannabis for Private Purposes Bill

Adv Sarel Robbertse, Chief State Law Advisor, took the Committee through the comments submitted by the National House of Traditional and Khoi-San Leaders (NHTKL) on the Cannabis for Private Purposes Bill.

The NHTKL was of the view that the Bill should be tagged as a s75 bill. The explanation was provided in Annexure A of the attached document.

After the briefing on the NHTKL’s comments, the Chairperson sought Members’ inputs.


Mr S Swart (ACDP) thanked Mr Robbertse for his presentation and asked him to clarify the tagging of the Bill. He recalled that the Parliamentary Legal Advisor had advised the Committee that because the Bill was changed and significantly differed from the version introduced in the beginning, the Committee might have to re-consider the tagging before the second reading of the Bill. He wanted to know whether Adv Robbertse suggested that since now the Bill had been referred to the NHTKL, the Committee did not have to consider the tagging anymore. He did not want the issue to be an obstacle in the development of the Bill going forward.

He remarked that the NHTKL had raised a number of valid issues in its submission, and stressed that those issues must be read with other submissions that had also been made from traditional communities to make sense of them. He referred particularly to the AmaMpondo community in the Eastern Cape ,and the Bill’s impact on the community farmers. Although the Committee’s position was evidently clear on the harms of using cannabis, the Committee must also be mindful of the traditional and cultural usage of cannabis. He suggested that there was a need to be more specific regarding growing cannabis on communal land, because the Bill in its current version could cause great uncertainty in its interpretation.

Mr Swart said there was a huge concern among some of those submissions on the bio-mass of tons of hemp with low tetrahydrocannabinol (THC) levels (3%), which could not be used at all. However, that had a huge impact on the region. He therefore suggested the Committee should consider visiting those regions to fully understand the impact on the ground. He emphasised that as legislators, they needed to strike the right balance to minimise the damage to traditional communities who had been using cannabis for hundreds of years.

He wondered whether there could be space for an exemption for low THC level such as bio-mass that had slightly exceeded the prescribed threshold (0.2%) but could still be used. He understood that the Bill had made progress on cultural and religious grounds.

These were very difficult questions to respond to, and he did not expect Adv Robbertse to answer them directly. However, he did want Members to bear those concerns in mind in the development of the Bill to mitigate the negative side of the Bill to the minimum for traditional communities.

Ms W Newhoudt-Druchen (ANC) noted that the Bill stated that law enforcement measures must be put in place. People in rural areas often cultivated on communal land, so she wanted to know if the Bill would mention the types of law enforcement measures.

Ms N Maseko-Jele (ANC) asked Adv Robbertse whether the NHTKL meant that the Bill should confine the religious ground only to the Rastafarians, and not consider other religious sectors that might be using cannabis.

Legal adviser's response

Adv Robbertse said that the proposed new long title of the Bill included the word "cultural," but failed to include "religious purposes," which was an omission on the part of the Department. He recognised the need for the long title to be amended to deal equally with cultural and religious exemptions.

He said the big challenge in regulating the cultivation of cannabis in rural areas was about communal land. There were two mechanisms in his view. Firstly, clause 1(b) specifically made the provision that the Minister may impose certain measures on a particular community to restrict access to land and to ensure children did not have access to cannabis. In addition, there was also a provision in the Bill that provided for the making of a regulation which could contain specific requirements on the cultivation of cannabis in private places, which could be used to regulate cannabis cultivation on communal land.

Adv Robbertse responded to Mr Swart’s question about the hemp THC percentage at 0.02%. He said that the Medicines Act currently regulates the percentage. However, the gap was that there were currently no other legislative or regulatory measures in place to deal with the cultivation of hemp for commercial purposes. He suggested that legislation should be made to regulate hemp, and it had to be explicitly stated in the legislation that other departments must make regulations to this effect. He envisaged that governmental departments involved in the process would be the Department of Trade and Industry, the Department of Agriculture and Rural Development mainly, with the Department of Health being involved in dealing with the medicinal aspect of hemp. Further, he suggested that the Bill could make provisions to regulate the commercialisation of cannabis and the high THC content in hemp in the interim, to ensure that there was at least some sort of regulations before the full enactment of the legislation.

The Chairperson interjected, and clarified to Adv Robbertse that in respect of Mr Swart’s comment on 1.2% versus 3% THC level, his view was that the percentage should not be determined by any governmental departments, but rather by Parliament, as the power of legislating was vested in Parliament.

Adv Robbertse noted the remark, and explained that the THC content of less than 0.02% was a requirement contained in the current legislation. The implication was that anything above the prescribed percentage could not be used, even for industrial use such as making clothes, dashboards, buildings, etc. The Bill before Members tried to address this issue by providing a clause which states that THC content for hemp must be determined by other legislation. This clause would help address Mr Swart’s concern about farmers who currently cultivated hemp with THC levels higher than 0.02 percent. He advised that the percentage should not be in the legislation, but rather in the regulations, and people on the ground should determine the right percentage of THC.

Mr Swart sought clarity on what Adv Robbertse meant by “people on the ground to determine the THC percentage.” He understood that the percentage issue could be a bit challenging because of international standards, but he also asked the Committee to be mindful of the unique climate conditions in South Africa, as well as the thousands of people whose hemp could not be used because of this legislation that had been set elsewhere. He urged the Committee to pay particular attention to the case in the Eastern Cape, as more and more people were moving towards cannabis commercialisation and job creation.

He referred to his experience in the legislature, and talked about the Committee passing the Money Laundering Bill, in which Members could pass bills cross-sectorally should it be necessary. Although he endorsed support for the judgment of Minister of Justice and Constitutional Development and Others v Prince, he reminded everyone of the negative impact that it would have on rural communities. The usage of cannabis could be harmful in urban communities, but there was a history of hemp production in rural, agricultural-based communities.

The Chairperson asked Mr Swart whether he meant that Adv Robbertse’s difficulty was that the hemp THC percentage had been put in place by another legislation under Health.

Mr Swart replied that the Committee intended to remove hemp from the Medicines Act in this Bill, so the issue of THC percentage was something which Members must deliberate on, seek advice on from their constituencies, and take guidance from Adv Robbertse. Members needed to know the impact if the THC percentage was to be changed or lifted.

The Chairperson asked Mr Swart whether it was the doctrine of repeal that if this legislation was passed, it would have been considered that all other previous legislations on the same issue were repealed.

Mr Swart replied that it could be applicable. He suggested that the Committee could simply insert a clause which stated that the provisions within this Act would supersede any other legislation that had been passed beforehand.

Adv Robbertse said that the legislation on the THC level would be based on the purposes of usage. For medicinal purposes, high international standards must be complied with. In his view, it might be problematic if the Committee specified minimum THC requirements in this Bill, because that should be determined by other legislation.

He had previously indicated to the Committee the different levels of THC being prescribed in other jurisdictions such as New Zealand, Australia and the United States. The overall international standard on THC was around 0.2% or 0.3%, with the former mainly being applied in America and Europe. The minimum THC requirement in Australia was 1%. The determination of certain THC content should be specified against certain users of hemp. The use of bio-mass must be brought for consultation with the appropriate regulatory institutions. The use of THC should also involve discussions with other relevant departments.

Mr Swart asked for more clarity on dealing with communal property under regulations. As legislators, Members needed to be cognisant of the actual environment that rural communities faced, particularly the extensiveness of the rural areas and the impoverishment of the people. Some regulations required rural inhabitants to have eight feet fences, with gates and padlocks. Although he fully understood the rationale of such requirements, he described the requirements as clearly not practically feasible. He thus asked Adv Robbertse whether he thought those requirements in the regulations were practical at all and what his alternative advice would be.

Ms Newhoudt-Druchen agreed with Mr Swart’s input on the regulation part.

She reminded Adv Robbertse that her question regarding law enforcement measures in communal land and properties had not been responded to.

Adv Robbertse replied that in terms of the Bill, it was still an offence if an individual did not comply, such as by cultivating cannabis in a public space or cultivating cannabis in excess of the prescribed amount. In addition to clause 1(b) of the Bill, the use of cannabis was still regulated by law enforcement, such as the South African Police Service (SAPS), for non-compliance. Clause 1(b) explicitly made it obligatory for communities and representatives to comply with the regulation, providing for the reporting mechanisms, and the appointment of certain persons who could be mandated to inspect.

Adv Robbertse had not heard Mr Swart’s question due to bad connectivity, so he asked him to repeat his question.

Mr Swart repeated his question, particularly highlighting the abject poverty in rural areas, and asked him whether the regulations were too onerous for poor community members to implement them.

Adv Robbertse said that one must distinguish the application of clause 1(b) and the manner in which cannabis could be used for private purposes. The key tenet of clause 1(b) was about compliance with certain prescribed provisions. He acknowledged that the regulation, as Mr Swart had mentioned, might be difficult for rural communities to adhere to. That was why the Department preferred keeping those requirements in the regulation part so that the Bill would not have to go through Parliament to amend the legislation.

The Chairperson suggested that maybe the Committee would need to review the regulations and approve them before they were implemented. He agreed with Mr Swart’s view that many people in rural areas who used cannabis lived in extreme poverty.

Adv Robbertse suggested that it might be better that the Bill should include a provision that required the regulations to be approved by Parliament.

Ms Maseko-Jele asked Adv Robbertse what the regulations would be that governed the use of cannabis in the interim, before the Bill was passed in Parliament. She highlighted the impact that those regulations would have on rural community members.

Adv Robbertse replied that the constitutional convention was that all necessary subordinate legislation must be in place before an Act could be implemented. The various judgments in the past and the Constitutional Court judgment had affirmed this convention -- that legislation could not be in operation unless it could practically function. Therefore, he believed the Act should be put into operation only once the regulations were finalised.

He said that since the Bill dealt with cultural and religious exemptions, it thus fell within s39(1)(a) of the Traditional and Khoi-San Leadership Act (TKLA). Since clause 1(b) touched upon the cultural and customs aspects which fell under schedule 4 of the Constitution, the tagging of the Bill had thus been changed to a s76 bill. Further, s76(1) of the Constitution provided the processes for dealing with the Bill. Rules of Parliament also provided processes for dealing with a bill that was wrongly tagged. He did indicate that the Bill had to be referred to the National Council of Provinces (NCOP).


Mr Swart agreed with Adv Robbertse’s point. He suggested the Committee should continue the process within the Committee as it was, and also invoke Joint Rule 163(1)(c) after Members had done their deliberations on the Bill because of the insertion of clause 1(b). He agreed that the tagging of the Bill would have to be changed to a s76 bill after the Committee had determined the A list.

The Chairperson suggested that Members should allow Adv Robbertse to incorporate Members’ inputs raised in the meeting and the inputs raised by the NHTKL, and that the Committee could proceed with the Bill in the meeting tomorrow.

Adv Robbertse said he would do so, and agreed with the Chairperson’s proposal.

Due to Members’ training for electronic disclosure at 11AM, the Chairperson did not wish to unnecessarily prolong the meeting. He informed Adv Robbertse that the Committee would allow him to work on the Bill and return to the Committee tomorrow. He also urged party whips and Members to ensure that a quorum would be formed in the meeting tomorrow, as the Committee needed to elect a Member who would serve on the Equality Committee to assist the Minister on legislation related to equality issues.  

The meeting was adjourned.

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