Cannabis for Private Purposes Bill: deliberations

Meeting report

Equality Review Committee: National Assembly representative
The Chairperson explained that the Committee needed to elect a Committee Member to serve on the Equality Review Committee to advise the Minister on the operation of the Promotion of Equality and Prevention of Unfair Discrimination Act including the Equality Courts.

Mr X Nqola (ANC) nominated Ms Maseko-Jele. Mr R Dyantyi (ANC) supported the nomination.

The Chairperson asked her if she would be available to serve on the Equality Review Committee.

Ms Maseko-Jele agreed that she would.

The Chairperson said the decision would be communicated to the Speaker.

Cannabis for Private Purposes Bill: deliberations
Dr Barbara Loots, Parliamentary Legal Advisor, said that the Committee should not concern itself at this stage with the change in the tagging of the Bill from a Section 75 to 76 Bill (affecting the provinces) as it should not impede the process and Members are certainly free to make any amendments at this stage. Legal Services would review the amendments after Members had finished their deliberations and advise the Joint Tagging Mechanism should there be any need. The change in the tagging of the Bill would most likely happen during the second reading of the Bill in the National Assembly.

The Chairperson said that as the Chief State Law Advisor took the Committee through the working draft of the Bill with the proposed amendments, Members could comment, ask questions or raise objections. Should they not raise their hands, it would be automatically assumed that they had no comments about the suggested amendments.

Mr Sarel Robbertse, DoJ&CD Chief State Law Advisor, took the Committee through working draft of the Bill with the proposed amendments as well as options for the Committee to decide on.

Long Title
Ms Newhoudt-Druchen was inclined to support the first option since she had observed that cannabis was not only used by people who self-medicated, it was also used by traditional healers, homeopathic practitioners, herbalists, and so on. She felt that the second option narrowed the scope and excluded those traditional practitioners.

Ms Maseko-Jele sought clarity on the term 'self-medicate'.

Mr Robbertse replied that he was not aware of homeopathic doctors or herbalists prescribing cannabis to treat their patients. Most practitioners do not have the right by law to prescribe cannabis to patients and that does not fall in the terrain of the present Bill. It falls under the Medicines and Related Substances Act which requires the Department of Health (DoH) to make amendments. What this Bill can effect is for doctors to issue a certificate to allow people to cultivate cannabis for their private uses.

After the explanation, Mr S Swart (ACDP) said that he believed that either option would be acceptable at this stage although if a decision had to be made, he was of the view that the second option 'self-medicate' would be more accurate.

The Chairperson asked Ms Newhoudt-Druchen if she preferred option one.

Ms Newhoudt-Druchen replied that option two should be fine if a definition for 'self-medicate' could be included in the Bill.

Ms Maseko-Jele said that to her knowledge herbalists are allowed to prescribe cannabis. If a herbalist prescribes for a patient medicine which contains cannabis, what would be the repercussions for that practitioner and the patient?

Ms Newhoudt-Druchen clarified that she had referred to herbalists and not homeopathic practitioners and that it was an interpreter error.

Mr Robbertse replied that one must refer to s22(a) of the Medicines Act which provides that Schedule 6 medicines under which cannabis falls can only be prescribed by doctors, dentists and other medical professionals of such nature. Since no medicine which contains cannabis has been registered with the South African Health Products Regulatory Authority (SAHPRA) according to s1 of the Medicines Act, prescribing medicines which contain THC would be considered to be in contravention of the Medicines Act which would be illegal.

Ms Maseko-Jele questioned if society and government are discriminating against herbalists if they are not allowed to prescribe cannabis but other categories of health professionals are allowed to.

Mr Robbertse reiterated that it was Schedule 6 of the Medicines Act that regulates which categories of health professionals were permitted to prescribe what. In addition, it was not the purpose of this Bill to discuss who had the right to prescribe cannabis.

Having noted the response, the Chairperson suggested proceeding and hoped that there would be more clarity as the Committee moved along with the Bill.

Clause 1 Definitions
"cannabis"
The Chairperson asked Mr Robbertse if he recommended option 2.

Mr Robbertse replied that he would recommend option 3 because it is impossible to enforce if option 2 was adopted. Medical literature records the death of children as a result of having consumed items containing a high THC level. He reminded Members that the key decision here is if the Committee would agree to 1 or 2% THC concentration.

Mr Robbertse recalled that Mr Horn had mentioned that 2% THC content was the DoH recommendation. However, if the Committee intends to accept option 3, he highlighted the need to distinguish the percentage in the Bill.

Ms Y Yako (EFF) supported option 3 with a 2% threshold being stipulated in the Bill.

Ms Maseko-Jele noted the explanation and supported the 2% threshold.

Adv G Breytenbach (DA) agreed with Mr Robbertse that option 2 would be un-implementable and believed that it should be scrapped completely.

Adv Breytenbach said that plants grown in different places would even have different properties. There may be instances where the same plant grown in one region would have a higher level of an ingredient than the same plant grown in other regions. She thus wanted to know how the Committee should deal with that in the Bill.

She supported option 3 with 2% threshold for THC content level in cannabis.

Mr Horn differed on Mr Robbertse’s recollection on the THC level. He had actually asked the DoH to get scientific data to advise the Committee on the tipping point percentage for THC which could substantiate criminalisation which the Committee had been contemplating. However, he understood Mr Robbertse’s explanation today and agreed that this Bill should steer clear of arbitration on THC level. He wanted Mr Robbertse to elaborate on the rationale for a 1% THC requirement.

Mr Robbertse explained that what informed the THC content percentage is highly technical. The current 0.02% THC content was recommended by the Department of Health. In his view, such a percentage was unimplementable. THC content in cannabis plants could vary even if it is the same strain of cannabis plant that is being cultivated in different countries. The THC level in the cannabis plant depends on the climate. Hence, countries often re-prescribe the THC percentage as a result of that. Generally speaking, the THC content is between 0.2 to 0.3% in Europe. The THC level in Australia is slightly higher up to 1%. He advised that it was not necessary for Members to regulate high THC content cannabis at this stage. However, the issue would come up at a later stage.

Adv Breytenbach asked Mr Robbertse to elaborate on his statement that it might be necessary to determine the safe limit since the Bill spoke to cannabis commercialisation. She pointed out that Members must also take into account that different people may react differently and thus have different limits on cannabis consumption.She also pointed out that Members so far did not find anything unsafe about the commercialisation of cannabis.

[Mr Robbertse’s response was inaudible 57:20—58:41]

Ms Maseko-Jele understood that different percentages of THC are being applied in different countries. So far the Committee’s data is mainly from the US. She noted the DoH recommendation which Mr Robbertse had just mentioned. Since the Committee was deliberating on a Bill that dealt with cannabis commercialisation, she asked what scientific evidence informed the 2% and 1% THC content. She asked if those percentages were being applied in other jurisdictions for cannabis commercialisation.

Mr Robbertse replied that in South Africa the only legislation which regulated cannabis was the Medicines Act. Schedule 6 of the Medicines Act prescribed 0.02% as the acceptable THC percentage. In addition, 0.01% is the THC percentage for products. The rationale behind using the percentage in Schedule 6 was to address the constitutional defect in order to accommodate people who cultivate cannabis on their private premises as a result of the Prince judgement.

The Chairperson said that there was consensus among Members on the 2% and asked Mr Robbertse to proceed.

"guardian"
Ms Maseko-Jele supported option 1 and said they must be cognisant of the reality that there were many households in South Africa that were headed by children. Thus the definition of guardian must take that into account.

Mr Horn agreed and supported the broader definition of option 1.

"private place"
Both Ms Maseko-Jele and Ms Newhoudt-Druchen supported option 1.

"THC"
Mr Robbertse advised that option 1 would be more preferred.

The Committee agreed.

Clause 2 Prescribed quantities for personal use by adult person
Ms Maseko-Jele sought clarity on the term “authorised person” in clause 2(4)(d) and asked if this clause correlated with the Long Title when Members had deliberated on the term 'self-medicate'.

Mr Robbertse confirmed that it did.

The Chairperson said that now the term 'self-medicate' became clearer and asked Ms Maseko-Jele if she still held her objection.

Ms Maseko-Jele said that there were two issues. To self-medicate one had to be issued a certificate by a registered health professional or the person had to be authorised by the minister. This was related to the concern about herbalists.

The Chairperson asked Mr Robbertse to continue.

Clause 3 Cultivation offences
Mr Robbertse advised the Committee in clause 3(3) that the second option was preferred.

The Committee accepted the suggestion.

Ms Maseko-Jele asked which authority, the court or the Department, decided the amount of the fine.

Mr Robbertse replied that according to the Magistrates Court Act, the maximum fines in ratio to imprisonment the court could impose were: R120 000 with the equivalency of a three-year imprisonment, R40 000 was equivalent to one-year imprisonment, R20 000 was six-month imprisonment and R10 000 was a three-month sentence.

Clause 10 Hemp Commercial Activities
Mr Robbertse said that Mr Swart had mentioned hemp commercial activities in the meeting yesterday. There was possibility to accommodate hemp and cannabis commercial activities. Mr Swart had also mentioned that the Committee should consider the insertion of an empowering provision.

Mr Swart noted that he wanted to hear the proposal first before making a decision if he would support the insertion of an empowering provision in the Bill.

The Chairperson noted that the Bill made reference to a number of ministers and questioned if there was no role to be played by the Minister of Justice and Correctional Services.

Mr Robbertse explained that the minister under Clause 10 referred mostly to the Minister of Agriculture, Land Reform and Rural Development, but it referred to the Minister of Justice in other parts of the Bill.

The Chairperson asked Mr Swart if he was covered by Mr Robbertse’s response on hemp.

Mr Swart described Mr Robbertse’s response as very helpful given that the commercial production of hemp had emerged right at the beginning and this concern is now removed which is very important. He asked if there is an empowering provision in agricultural legislation and he assumed that the answer was no. He asked if this empowering clause would link to the definition of hemp under s1 of the working draft as presented.

Mr Robbertse confirmed that the definition of hemp would have to be re-drafted if Members felt that the Bill before them was an acceptable proposal. If hemp would be the term that was to be used in the Bill, he anticipated that there would be some other name changes in Chapter 2 of the Bill as well. However, this provision does provide that THC may be prescribed by regulation, that does not mean that hemp would be excluded from the definition of cannabis. In his view, hemp must still remain as part of the definition of cannabis.

The Chairperson went back to the two options about use of cannabis for "palliation or medication" or "self-medicate" and sought Members’ opinions.

Ms Maseko-Jele agreed on the second option of self-medicate.

Ms Newhoudt-Druchen remarked that it was a bit difficult for her to read and watch the presentation at the same time. She personally would prefer reading the working draft of the Bill first before coming to any conclusions. That being said, she would go for the second option.

Ms Newhoudt-Druchen requested that the presentation content of today’s meeting be sent via email as she had noted huge differences between the version that was being presented today and the version which she had received previously.

The Chairperson noted that Mr Robbertse had previously said that it would take him five days to produce the A list of the Portfolio Committee proposed amendments.

Mr Robbertse replied that adding the commercialisation of hemp would involve amendments to relevant legislation. But he also wanted an indication from the Committee if it still needed him to provide cannabis regulations for commercialisation in the interim.

Mr Swart was of the view that the Committee should stick to hemp production for the time being because of its low THC level. Since there would be time between now and the next meeting scheduled for 29 November, Members could use this time to think about the further implications if the Bill goes beyond hemp production and extends to the terrain of more general cannabis production. He suggested that the Committee in the meantime stick to hemp production for this version of the Bill and the changing process could happen in the NCOP.

Mr Robbertse said that the A list of the Bill would be ready by 24 November next week.

Ms Christine Silkstone, Committee Content Advisor, noted Mr Robbertse’s remark on the Constitutional Court’s judgement on children and asked him to further clarify the impact of that judgement on the Bill.

Mr Robbertse said that it might not be appropriate to impose criminal sanctions on minors who were caught with cannabis. Other measures such as the Prevention of and Treatment for Substance Abuse Act and Children’s Act were more suited to deal with child offenders. He referred to Schedules 2 and 3 of the Child Justice Act and highlighted that it should not be considered a serious offence if a child is caught with cannabis.

Committee Programme
The Chairperson said that the Committee would reconvene on the Cannabis Bill on 29 November.

Mr Swart pointed out that the Electoral Amendment Bill had been finalised in the NCOP. He suggested that the Committee could slot it into its programme on 8 December.

The Chairperson remarked that Members shall see how everything went when they meet again on 29 November, then they could develop a programme to better plan how the Committee deal with all the outstanding Bills before they could be concluded and debated in the House.

The Chairperson said that the Committee would convene on 18 November to discuss the Prevention and Combating of Hate Crimes and Hate Speech Bill and the adoption of its Budgetary Review and Recommendations Report (BRRR). The Chairperson estimated that the Hate Crimes Bill would most likely only be finalised next year. The Committee had not received Members' inputs except those from Ms Maseko-Jele and Mr Horn.

Mr Horn said that the hate crime part of the Bill will not be as lengthy as the hate speech part and Members should try to finalise it on the 18 November.

Both Mr Swart and Ms Yako asked for a grace period for their inputs. The former cited the sensitivity on the hate speech part as the main issue whereas the latter explained that she had been inundated with so much work that she was unable to consolidate all the inputs.

The Chairperson agreed and said that there is no way that the Committee would be able to finalise both the Prevention and Combating of Hate Crimes and Hate Speech Bill and the Cannabis for Private Purposes Bill. He thus suggested that the Committee should firstly deal with the hate crime Bill on Friday and then make a decision on if it would need a further extension.

The suggestion was agreed to by all Members.

The Chairperson adjourned the meeting.