Cannabis for Private Purposes Bill: public hearings; Committee Report on National Council for Correctional Services Appointment

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Justice and Constitutional Development

23 May 2023
Chairperson: Mr G Magwanishe (ANC)
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Meeting Summary

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In the first of two days of public hearings, the Committee heard oral submissions on the Cannabis for Private Purposes Bill. The hearings focused on new provisions for the commercialisation of hemp introduced in the latest version of the Bill.

Eight of the nine submissions lodged serious objections to the Bill, with only the Congress of South African Trade Unions (COSATU) expressing support for the Bill’s passage. COSATU expressed concern about some provisions of the Bill, suggesting that the Bill was contradictory insofar as it purported to legalise cannabis while also imposing strict restrictions on cannabis use. Nonetheless, COSATU believed that Parliament’s utmost priority should be to pass the Bill before the end of the Sixth Parliament.

Mr Jeremy Acton rejected the Bill. He argued that the Bill intended to criminalise cannabis users and that the Bill would severely limit people’s access to the benefits of the cannabis plant. The Minister of Justice and Correctional Services was not the correct authority to regulate cannabis cultivation and use.

The Cannabis Trade Association Africa welcomed the introduction of provisions to regulate commercial cannabis-related activities, but it did not support the principle of prescribing limits to the quantity of cannabis plants that could be cultivated in private. Enforcement of such limits would be incompatible with the right to privacy, which had been affirmed by the Constitutional Court.  

Mr Paul-Michael Keichel said the Bill was disjointed, unconstitutional, and unenforceable. If enacted, it would face a protracted legal challenge.

The Magingqi Community Trust said that the legislative process presented an opportunity to bring about rural regeneration and to correct past injustices perpetrated against cannabis-growing communities. Industrial cannabis should be defined and regulated according to use, rather than according to THC content.

The National Nyahbinghi Council of South Africa expressed concern that the Committee’s public consultation process had not been accessible to the communities affected by the legislation. The Committee should invite further meaningful public participation.

The Umzimvubu Farmers Support Network urged that the Bill in its current form should not be enacted. As currently drafted, the hemp provisions would prevent amaMpondo farmers from cultivating their indigenous landrace strains and would compel them to use imported strains instead.   

Ignited Unlimited and Qure also rejected the Bill. Commercial cannabis farming should not be regulated by the Cannabis for Private Purposes Bill but should instead be regarded as a primary agricultural activity and regulated by the Department of Agriculture, Land Reform and Rural Development.

Meeting report

Opening remarks

The Chairperson said that, late the day before, he had received a letter from Doctors for Life, which was scheduled to make an oral submission on the Cannabis for Private Purposes Bill. The organisation had requested an extension to prepare presentations from local and international experts. In its letter, Doctors for Life also suggested that the Committee was rushing the processing of the Bill to meet the bare minimum.

He did not think it was true that the Committee was rushing the Bill. The Committee had solicited public submissions on several occasions. Few other Bills had been given this level of attention during the Sixth Parliament. He proposed that the Committee consider Doctors for Life’s written submission, which would have the same effect as an oral submission. Further public hearings would occur when the Bill was before the National Council of Provinces (NCOP).

Mr R Dyantyi (ANC) agreed that the Committee should consider Doctors for Life’s written submission. It seemed that Doctors for Life was not ready to present, and it was unfair for the organisation to attempt to shift the blame onto the Committee.

Ms W Newhoudt-Druchen (ANC) supported the Chairperson’s proposal. Doctors for Life was scheduled to make an oral submission today – perhaps it could be given an opportunity to present tomorrow instead. Either way, the Committee would consider its written submission.

Mr W Horn (DA) agreed with the way forward as proposed.

Mr S Swart (ACDP) said that he would have liked to give Doctors for Life more time, but he understood the conundrum that the Chairperson faced. He agreed that Doctors for Life could present tomorrow.

He reminded the Chairperson to urge all participants to respect Parliament and Members, because a lot of distasteful comments had been made during the last public hearings.

The Chairperson said that the Committee would guarantee everybody’s right to speak, to be heard, and to be respected. He reminded the presenters that they had been invited to make submissions of limited scope, responding specifically to the clauses of the Cannabis for Private Purposes Bill that dealt with the commercialisation of hemp.

Oral submission: Mr Jeremy Acton

Mr Jeremy Acton, leader of Iqela Lentsango (the Dagga Party), said he rejected and “vetoed” the Cannabis for Private Purposes Bill. The Bill in its present form did not comply with the Constitutional Court judgement, nor did it respect basic human rights.

He believed that the clear intent of the Bill was to criminalise people, rather than to provide real guidelines for the establishment of a constructive, equitable, and inclusive cannabis industry in South Africa. The Bill severely limited people’s access to the benefits of the cannabis plant, which were well established.

The Bill regarded cannabis sativa as an undesirable dependence-producing drug, but at the same time, it appeared to recognise the nutritional value of industrial hemp seeds. The Bill set out that seeds and fibres could not be harvested from high-THC plants high in tetrahydrocannabinol (THC), which was ridiculous and arbitrary. The Bill also claimed, without substantiation, that cannabis imposed harm on society.

The hemp provisions of the Bill allowed the Minister of Justice and Correctional Services, like a “gangster”, to appropriate sole decision-making power, policy-making power, and licensing authority in the cannabis industry. Moreover, the Bill eroded privacy rights without reason.

(See document for details.)

Discussion

Ms Y Yako (EFF) asked what Mr Acton recommended as a way forward.

Mr Acton replied that Ms Yako’s question was very constructive. There should be a regulatory document setting out government’s policy and providing guidelines on how the cannabis resource would be exploited for the benefit of all South Africans. In its current form, the Bill sought primarily to cement state control and extend the state’s licensing authority. The Bill should also assist residents of the former homelands by allowing them to unlock the economic value of cannabis and its recreational narcotic value.

He had begun to draft a policy for the Dagga Party, but there had not been a platform for people to suggest substantive provisions for inclusion in the legislation. Any attempt to prescribe quantity thresholds would invade privacy, and it was inappropriate for criminal-justice agencies to regulate cannabis. He would like the opportunity to submit his substantive suggestions for the way forward. The Committee had already heard numerous suggestions for ways that cannabis could be regulated without relying on the police. The Minister of Justice and Correctional Services was not the right agency – cannabis should be regulated by democratic structures, not by a single Minister.

Ms N Maseko-Jele (ANC) said that the content of Mr Acton’s submission should have been addressed in the first phase of public hearings. These public submissions should focus specifically on the commercialisation of hemp, because the Committee has already dealt with broader issues, such as the role of the Minister.

Mr Acton replied that the current draft of the Bill did not respond to the complaints that members of the public had raised in earlier public submissions.

Mr Swart thanked Mr Acton for his presentation, although it was quite disrespectful to the Committee. The Committee had its own concerns about the Bill, though from a different perspective. It would be helpful for Mr Acton to make another written submission about the value of hemp and his concerns about policing and privacy. Mr Acton’s use of words such as “veto”, and his accusation that the Bill was in contempt of the Constitutional Court order, did not support his case. He encouraged Mr Acton to use his experience as a litigant to assist the Committee in addressing the commercialisation of hemp.

Ms Yako noted that Mr Acton believed there should be a regulatory framework, but the Minister of Justice and Correctional Services was not the appropriate regulating authority. Who should be the regulating authority and ensure that the regulations are adhered to?

Mr Acton replied that the authority should rest with the Minister of Trade and Industry, the Minister of Agriculture, Land Reform and Rural Development, or the Minister of Social Development. The regulation of cannabis should be detached from policing and prosecutions. Instead, regulation should be approached from a constructive economic standpoint.

In response to Ms Maseko-Jele's comment about the scope of his submission, he said that his concerns about quantity prescriptions and invasions of privacy had not been addressed in the current draft of the Bill, which had been circulated for comment. The Bill was flawed from the preamble onwards and should be completely reconsidered. The Committee could not create laws that criminalised people who had not consented to the laws.

The Chairperson thanked Mr Acton for participating. His submission would be considered and receive a response from the Department.

Oral submission: Congress of South African Trade Unions

Mr Matthew Parks, Parliamentary Coordinator, Congress of South African Trade Unions (COSATU), appreciated that the Committee had gone out of its way to provide for public participation. COSATU welcomed the Bill and, in principle, supported its passage.

Areas of concern

COSATU was concerned that the Bill placed restrictions on the possession and sale of limited quantities of immature cannabis plants. There appeared to be little justification for these restrictions beyond a bureaucratic sullenness towards legalising cannabis.

It was concerning that the revised Bill no longer contained clause 3(2)(A), which required cannabis owners to ensure that cannabis was not accessible to children.

The Bill correctly sought to provide for the legal use of cannabis for religious and cultural activities, yet it placed a raft of bureaucratic and often impractical conditions for this right to be exercised. These requirements were excessive, bureaucratic, and daunting, and they would discourage the relevant religious and cultural bodies from seeking to comply with the law. Non-compliant bodies would then face arrest and conviction, thus undermining the very objective of the Bill: to legalise cannabis.

Similarly, COSATU welcomed that the Bill reduced the penalties for various criminal offences. Yet, again, criminalisation was at odds with the directive of the Constitutional Court – to legalise cannabis – and with government’s own efforts to nurture and cultivate the hemp industry.

Mr Parks said that COSATU would like to see its concerns addressed, but it understood that doing so might present a practical problem, given that the Sixth Parliament was coming to a close. If it would not be possible to address COSATU’s concerns and still pass the Bill before the end of the Sixth Parliament, COSATU would urge Parliament to pass the Bill in its current form and refine the legislation at a later point.

(See document for details.)

Discussion

Ms Yako said that COSATU was always making public submissions. The Committee was aware it had to pass the Bill before the end of the Sixth Parliament, but she did not understand why COSATU had an interest in this Bill and why it had made a submission. She worried about the calibre of the submissions that the Committee received.

Mr Parks replied that COSATU did not want to engage with any insults from the EFF, because it was not productive or useful. The EFF could continue to disparage COSATU for party-political purposes.

He explained that the Police and Prisons Civil Rights Union (POPCRU) was a COSATU affiliate, and its members frequently complained that prevailing cannabis laws required the police to go after people who were not really criminals. Police officers would much rather go after actual criminals. Similarly, COSATU included health workers who would like to use the medicinal benefits of hemp to help patients, and industrial workers from Mercedes-Benz who said that hemp could be used for building cars, and so on. Like everybody else, COSATU’s members were invested in the activities of Parliament.

Ms Maseko-Jele noted COSATU’s concerns, particularly about possible contradictions in the Bill. The Committee should look into the contradictions and ensure that the legislation passed constitutional muster, but the Bill would also receive further attention in the NCOP.

Mr Parks thanked Ms Maseko-Jele for acknowledging COSATU’s concerns. COSATU appreciated the significant amount of work done on the Bill. The Committee had held three rounds of public hearings, which showed a high level of commitment and inclusivity. COSATU hoped that the Committee would try to address all its concerns. NCOP processes tended to be less inclusive than the National Assembly’s processes: public participation usually occurred at provincial hearings, where members of the public were given a minute or two to raise their issues in a community hall. The Committee undertook a deeper level of engagement.

He reiterated that the Bill still had challenges, as shown by the attacks it faced from multiple civil society organisations. While COSATU supported the Bill in principle and wanted to see it passed timeously, COSATU also highlighted several contradictions. On the one hand, the Bill legalised cannabis, while on the other hand, it imposed significant restrictions and penalties. He had raised the issue of timeframes based on COSATU’s practical experience – COSATU did not want to see the Sixth Parliament end before the Bill was passed.

The Chairperson said that the Committee would do whatever it could to pass the Bill in time.

Oral submission: Cannabis Trade Association Africa

Mr Tebogo Tlhopane, Board Member, Cannabis Trade Association Africa (CTAA), reminded Members that no deaths had ever been attributed to cannabis use. The World Health Organisation has declared that cannabidiol should be unregulated. CTAA and others had raised concerns with the Bill during the first and second rounds of public hearings, but those concerns evidently had not been considered – they were not reflected in the current draft.

CTAA welcomed the introduction of the clauses on commercial cannabis activities. It also welcomed the allocation of governance and oversight of hemp and hemp-related activities to the Department of Agriculture, Land Reform and Rural Development.

However, CTAA was concerned that the Bill limited cultivation for personal use to four plants. Individuals who cultivated more than four plants would be guilty of a criminal offence under the Bill. The underlying rationale for this limitation was unclear.

The Bill contradicted the Constitutional Court’s ruling, which guaranteed the right to privacy for personal cultivation and use of cannabis. CTAA feared that the police would have the power to count plants in a person’s private space. That would infringe upon the right to privacy and constitute an undue burden on police resources.

(See document for details.)

Discussion

Ms Yako said that she was cognisant of the issues that Mr Tlhopane had raised, especially his concern that the policing of cannabis would infringe on people’s privacy. During its deliberations, the Committee should consider CTAA’s submission carefully to see how it could assist in addressing CTAA’s concerns.

Oral submission: Mr Paul-Michael Keichel

Mr Paul-Michael Keichel, attorney, Cullinan & Associates, said that, under Section 36 of the Constitution, the state was required to justify rights limitations concerning considerations such as the purpose of the limitation, whether the purpose was achieved, and whether there were less restrictive means to achieve the same purpose. Throughout its public hearings, the Committee would hear that there were certainly less restrictive means for this Bill to achieve its purpose.

Mr Keichel did not agree with COSATU that the Bill should be rushed. If the Bill in its current form was enacted, it would be challenged in the courts for many years to come. The only rush was for the South African Police Service (SAPS) to cease arresting people for acts that were, in terms of the Constitutional Court judgement, no longer crimes. The government could send out a directive forbidding such arrests, and that would give civil society and the government the necessary “breathing space” to get the legislation right.

He noted the Committee’s earlier discussion about the submission from Doctors for Life. Doctors for Life was a conservative organisation. It “got in the way” of the Constitutional Court case in 2017, and many civil society stakeholders believed it was doing so again. The Committee should disregard Doctors for Life’s submission insofar as Doctors for Life attempted to “claw back” the rights the Constitutional Court had already granted.

Any legislation would face difficulties if it attempted to categorise cannabis varieties on the basis of things like THC content. The following rhetorical questions suggested some of those difficulties:

• How would the government enforce the Bill’s provisions against the rural amaMpondo, who wanted to grow cannabis and use the stalks for hempcrete to build their own private residences? Would the government force such people to switch from their landrace cannabis to imported hemp cultivars if they wanted to dabble in the commercial hemp space?

• How would the government deal with the issue of cross-pollination? Would the rural amaMpondo be criminalised, or forced to destroy their hemp crop, because of cross-pollination from somebody else’s crops?

• How did the state propose to differentiate between cannabis cultivation material and hemp cultivation material in the context of private use? If civilians wanted to grow cannabis as a hedge around their property or to build a hempcrete kraal, did they have to confine themselves to growing only “approved” cultivars, with a certain THC content, and only in prescribed quantities?

Mr Keichel concluded that the Bill was disjointed and unconstitutional. It would ultimately prove unenforceable. Piecemeal amendments would not be constructive and the solution was to start afresh. Alternatively, Parliament could reconsider the scope of the Bill and return to the more limited task set by the Constitutional Court, which was to regulate the cultivation and use of cannabis for private purposes.

 (See document for details.)

Discussion

Ms Maseko-Jele said that different public submissions presented different perspectives about how the government should fulfil and balance constitutional imperatives. However, it would not make sense to start afresh on the Bill and thereby nullify the work that had already been done. She noted Mr Keichel’s concerns about compliance with constitutional law, but she did not think it would be possible to start afresh.

Mr Keichel said he believed the Bill should return to the drawing board. He agreed that a significant amount of work had been done on the Bill, but one should not fall into the sunk-cost fallacy. If passed in its current form, the Bill would be tied up in court challenges for a number of years, because it was unconstitutional. That scenario would not achieve the purpose of the legislation and it would be a waste of all the efforts that had gone into the Bill.

Ms Maseko-Jele noted that multiple submissions had raised concerns about the police invading homes to ensure that people complied with the law. Was it an error for the Bill to attempt to restrict the quantity of cannabis individuals were allowed to cultivate?

Mr Keichel replied that the Constitutional Court had ruled in 2018 that it was no longer a crime to cultivate, consume, or possess cannabis in private for personal use. Yet certain rogue SAPS units continued to arrest people on a daily basis, exposing them to trauma and ruining their lives.

Nobody purported to have the authority to come into somebody’s home to count the number of wine bottles or tobacco cartons he had stored for personal and private use. That would be an unconstitutional invasion of the right to privacy. By analogy, it would be unconstitutional for a police officer to come onto someone's property to count the number of cannabis plants. Like cases should be treated alike. Cannabis possession should be regulated in the same way as alcohol and tobacco possession.

The Chairperson assured Mr Keichel that his submission would be considered during the Committee’s deliberations.

Oral submission: Magingqi Community Trust

Chief Zwelikhanyile Diko, founder, Magingqi Community Trust, said that discussions about cannabis brought up deep emotions, because a lot of memories came to mind. He remembered a time during his childhood when boys would make cars by mixing the inner core of the cannabis plant with mud.

Rural communities felt isolated and faced many social and financial difficulties. His community had been cultivating cannabis for more than 150 years. For the last five years, they had been working on a business model in the hope that government would implement measures to unlock the economic value of landrace cannabis. For generations, communities that grew landrace cannabis had been marginalised, persecuted, and abused due to oppressive legislation. Parliament now had the opportunity to transform society and correct past injustices. 

The Magingqi Community Trust proposed that:

• Industrial cannabis should be defined and regulated according to industrial use, not primarily on the basis of THC content;

• Legislation should focus on rural regeneration, should include existing traditional farmers in the value chain without red tape, should maximise South Africa’s competitive advantage with resilient genetics, and should avoid creating further barriers to economic participation; and

• Government should implement efficient and inclusive legislation and regulations to forestall the need for legal challenges, which were prohibitively costly for impoverished traditional communities.

(See document for details.)

Discussion

Ms Maseko-Jele said that the Committee acknowledged Chief Diko’s concerns. The Committee and the Department would continue to refine the Bill.

Referring to Chief Diko’s childhood memory, Mr Dyantyi asked how children made cars from the cannabis plant.

Chief Diko replied that boys mixed the inner core of the cannabis plant with mud. The cars were very strong and resistant to heavy rain and cracks.

Oral submission: National Nyahbinghi Council  

A representative from the National Nyahbinghi Council (NCC) said that the RasTafari community rejected the Bill in its present form. RasTafari advocated for total liberation of the plant.

The NCC asked that the Bill should use the term “RasTafari” rather than “Rastafarians”.

As a community affected by the proposed legislation, the NCC continued to respond to all calls for public input on all aspects of the cannabis legislation. It was gravely concerned that its submissions were not being considered.

The NCC strongly recommended further, meaningful public consultation. Public consultation should inform and engage the community in their own language. Parliament should go to the people.

The NCC highlighted these concerns not just for the sake of the RasTafari community, but for all indigenous communities that had indigenous knowledge of cannabis and were affected by the Bill.

(See document for details.)

Discussion

Ms Newhoudt-Druchen asked the presenters to share their slideshows, which were sometimes easier to read than the full written submissions.

Ms Maseko-Jele noted the NCC’s request for Parliament to allow further public participation regarding the Bill. Was the presenter aware that the Committee had already held public hearings earlier in the process?

An NCC representative replied that the RasTafari community had not been properly consulted. Access to the process was mostly restricted to those who had access to emails. The NCC’s concerns had not been addressed, which was why NCC continued to raise those concerns. The NCC believed that not much had been done to consult with the public in the language that they understood.

Oral submission: Umzimvubu Farmers Support Network (UFSN)

Mr Ricky Stone, Director, Umzimvubu Farmers Support Network (UFSN), said that UFSN maintained that certain clauses of the Bill were unconstitutional. UFSN had submitted comments in the past and it was clear that those comments had not been taken into account, specifically regarding hemp. Had UFSN’s comments been taken into account, the Bill would not contain any reference to “hemp”, because the purpose of the Bill was to regulate the personal and private use and cultivation of cannabis, not the “commercialisation of hemp”.

For centuries, amaMpondo cannabis farmers had cultivated indigenous landrace cannabis for spiritual, cultural, and medicinal purposes, but also, importantly, for industrial purposes. “Hemp” was precisely a term for cannabis used solely for industrial purposes.

Ancient amaMpondo cultivars contained more than 2% THC. The Bill would prevent amaMpondo from cultivating their world-renowned cannabis cultivars. Did the government truly intend to say that the amaMpondo should destroy their ancient genetics and cultivars and instead cultivate imported “hemp” varieties? Was there not something fundamentally wrong with that mindset?

It seemed that the Committee were rushing to pass the Bill before the end of the Sixth Parliament. The deadline set by the Constitutional Court had already passed. However, the Bill should not be rushed and it should not be enacted in its current form. It was potentially unconstitutional and was not grounded in a human rights framework. If passed, it would be litigated for many years to come.

(See document for details.)

Discussion

The Chairperson said that Mr Stone’s presentation was clear. The Committee would consider UFSN’s comments, including those made in earlier submissions.

Oral submission: Ignited Unlimited

Mr Natie Ferreira, Director, Ignited Unlimited, said he had been farming industrial cannabis for research purposes since 2018. Through his research, he gained a deep understanding of the complexities of the cannabis sativa plant and its products.

Cannabis farming for industrial purposes had no place in the Cannabis for Private Purposes Bill. Commercial cannabis farming should be regarded as a primary agricultural activity and should be regulated by the Department of Agriculture, Land Reform and Rural Development.

There was no botanical or scientific basis for separating the cannabis sativa plant into distinct species based on cannabinoid content. Industrial cannabis, or hemp, should be defined as a product from the plant. Moreover, regulations based on cannabinoid content could not be enacted without detailed guidelines regarding sampling and testing procedures. The regulatory approach should be based on science and informed by consultation with the industry. 

A fresh Afro-centric approach was needed to legitimise existing genetic materials and incorporate them into the formal agricultural system. Farmers had to be able to use indigenous and naturalised cannabis varieties for industrial purposes.

The cultivation of hemp should not be regulated under the Plant Improvement Act. The industry should be allowed to regulate itself, including in continuing the ongoing improvement of genetic materials.

The process of drafting the current Bill had been flawed. Many guidelines were not based on science and had been developed without adequate consultation with industry and other stakeholders. Ignited Unlimited rejected the Bill in its entirety.

(See document for details.)

Discussion

Ms Newhoudt-Druchen asked about the difference between African cannabis seeds and imported seeds. She assumed that South African cannabis farmers would want to use their own local seeds.

Mr Ferreira replied that imported, non-adapted seeds tended to fail – they compared miserably to locally adapted seeds. The problem was that the Plant Improvement Act forced farmers to use certified seeds, which they had to import. Imported seeds were certified on the basis of cannabinoid levels recorded in conditions outside South Africa, which were completely dissimilar to local conditions.

Oral submission: Qure

Ms Ilse Ferreira, Director, Qure, said that Qure was the first cannabis-specific analytical laboratory in South Africa. The Bill reflected many inconsistencies and impracticalities, and Qure rejected the Bill in its entirety.

There was no botanical or scientific basis for separating the cannabis sativa plant into distinct species based on cannabinoid content. Industrial cannabis (or hemp) should be defined as a product from the plant. It would be appropriate to define hemp as “the non-psychoactive parts of the cannabis sativa plant”.

Cannabis farming for industrial purposes had no place in the Cannabis for Private Purposes Bill. Commercial cannabis farming should be regarded as a primary agricultural activity and should be regulated by the Department of Agriculture, Land Reform and Rural Development.

Cannabis could be used to produce a range of products across a variety of sectors. Each product should be regulated within its own sector. Adult recreational consumption of cannabis should be regulated similarly to tobacco and alcohol consumption.

Regulations based on cannabinoid content could not be enacted without detailed guidelines regarding sampling and testing procedures. Such regulations should be developed in consultation with the South African analytical industry.

(See document for details.)

Discussion

Ms Maseko-Jele noted that Ms Ferreira had said that she rejected the Bill in its entirety. What would happen if the Bill was not enacted?

Ms Ferreira replied that cannabis regulations could be incorporated into existing legislation. The Cannabis for Private Purposes Bill should remain private. People should be able to use cannabis in private, grow it in private, and cultivate it in private, without any plant-counting. The Bill needed a fresh approach.

With the Chairperson’s permission, Mr Makhubela Mokulubete, State Law Advisor, Department of Justice and Constitutional Development, asked a follow-up question. Ms Ferreira’s comments about plant counting applied broadly to many provisions of the Bill, not only to the provisions about commercial hemp. The Department and Parliament had drafted a Bill that intended to comply with the Constitutional Court ruling, but the Constitutional Court ruling had not specified what quantity of cannabis was permissible for personal cultivation or consumption by adults. The Bill proposed that adults should be allowed to cultivate four plants in private spaces. What did Ms Ferreira think was a sufficient quantity of cannabis plants for personal consumption and cultivation?

Ms Ferreira replied that it was unnecessary to count cannabis plants at all. It was not necessary to set quantity thresholds for people who possessed cannabis for private purposes, whether that purpose was growing hemp for seed or making pesto. There was no scientific basis to say that four plants marked the threshold for private use. She thought that the Bill attempted to limit the amount of cannabis that people could use for recreational or psychoactive purposes. However, cannabis was not only used for recreational purposes, but for a variety of purposes – such as medicinal purposes, or for making food or skin ointments. There were no limits on the number of grapevines that a wine farm was allowed to grow, so it did not make sense to limit the number of cannabis plants an individual was allowed to grow.

Mr Henk du Preez, State Law Advisor, Department of Justice and Constitutional Development, asked Ms Ferreira how she understood the distinction between hemp and dagga. He also asked Mr Ferreira if he thought that indigenous cannabis was comparable to indigenous rooibos.

Ms Ferreira said that Mr Ferreira was also a director of Qure and was better equipped to answer Mr du Preez’s questions.

Mr Ferreira said that he was familiar with the Rooibos saga. Dagga, or South African cannabis, was comparable to rooibos, Karoo lamb, or champagne, insofar as there were opportunities to market it as a unique product. Moreover, in the same way, as had been done with those other products, there were opportunities to vest certain rights in the indigenous communities that deserved it.

On the difference between hemp and cannabis, he said that hemp was a product of the cannabis plant. The definition of hemp did not have any botanical basis.

Ms Ferreira added that hemp was a legal term, not a scientific one. The meaning of “hemp” depended on the law in the relevant jurisdiction. Botanical classifications did not provide any basis for delineating hemp according to some particular cannabinoid level. Even given a particular legal definition of hemp, it was difficult to determine whether a plant qualified as hemp or not – a farmer could not know whether his plants were hemp until he had sent the plants for testing at a laboratory to determine their THC content. The distinction between “hemp” and “not hemp” should not be determinative.

Mr du Preez said that the Bill was an artefact of criminal law. His main question was how the state should go about commercialising and legalising something that had been illegal until now. The Department’s concern was the criminalisation, not the commercialisation, of certain acts. Many of the public submissions drew comparisons with alcohol and tobacco, but those industries were themselves heavily regulated. Cannabis was currently unregulated.

Ms Ferreira replied that the Bill sought to regulate cannabis for private purposes, not for commercial purposes. She had mentioned alcohol and tobacco precisely because those products were already regulated. The existing alcohol and tobacco regulations should simply be amended to include cannabis. Statistics proved that alcohol was far more harmful than cannabis – according to statistics, cannabis had never caused a road death. The Bill would be vastly improved if cannabis was simply regulated in the same way as alcohol.

Mr du Preez asked why there was so much emphasis on the safety of driving under the influence of cannabis. Safety tests had not been conducted in factories where people worked long shifts using heavy machinery, which could cause serious accidents and even deaths. Driving was not the only context in which safety was at issue.

Ms Newhoudt-Druchen said that Doctors for Life had submitted statistics about road accidents caused by cannabis use, so it was a pity that Doctors for Life was not present. She was unsure whether the statistics were collected in South Africa or overseas. Did Ms Ferreira know the source of Doctors for Life’s statistics, since she had said that no such statistics existed?

Ms Ferreira replied that she had not read Doctors for Life’s submission, so she did not know where its statistics came from. She had mentioned driving under the influence merely because it was a relatable everyday example. There might be a difficulty with measurement – one could test THC, but it was not possible to test how intoxicated a cannabis user was.

Ms Maseko-Jele asked Mr Ferreira to explain what he meant when he said the Bill was not Afro-centric.

Mr Ferreira replied that Afro-centrism was particularly relevant to the hemp provisions of the Bill. An Afro-centric approach was needed to unlock the knowledge and expertise of South African cannabis farmers in rural areas, who had a wealth of experience in growing cannabis for all purposes. Europe had a much newer crop of cannabis that had been bred in response to legal regulations – European varieties were bred to have very low levels of THC and higher levels of cannabidiol. South African cannabis farmers were much better equipped to tell the world how to handle the cannabis plant as a crop for all purposes.

Committee matters

The Committee adopted its draft National Council for Correctional Services (NCCS) report, dated 23 May 2023, with minor corrections. The DA and EFF reserved their votes.

The Chairperson reminded the Committee that it would meet physically on Friday. He asked the Committee Secretary to take the Committee through the logistics.

The Committee Secretary said the Committee would meet at 9.30 a.m. in room M314 in the Marks Building. Before the end of today, the Committee would receive an analysis document extracting issues from its oversight report.

The Chairperson said that the agenda for Friday’s meeting should be finalised today. He suggested that Friday’s meeting should also address outstanding matters regarding the South African Human Rights Commission.

Adv G Breytenbach (DA) said that she was greatly disappointed that the Minister of Justice and Correctional Services would not attend the Friday meeting, especially considering the Department’s poor performance. She expected the Deputy Minister of Justice and Correctional Services and the Minister of Public Works and Infrastructure to arrive at the meeting well prepared.  

Ms Yako agreed with Adv Breytenbach.

The Chairperson explained that the President had delegated the Minister to attend a standing meeting in France.

The meeting was adjourned.

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