Cannabis for Private Purposes Bill: public hearings
Justice and Constitutional Development
24 May 2023
Chairperson: Mr G Magwanishe (ANC)
Meeting Summary
After expanding the scope of the Cannabis for Private Purposes Bill, the Portfolio Committee on Justice and Correctional Services wrapped up two days of public hearings. According to the Chairperson, the suggested revisions aimed at expanding the Bill's purview to include clauses pertaining to the commercialisation of hemp. Afristar, Fields of Green for All, Doctors for Life, the Cannabis Action Group, the Marijuana Board, the Cannabis Trade Association, and the Rastafari National Council of South Africa, as well as individual activists, were among the stakeholders that addressed the Committee with their views on the Bill.
Several speakers expressed concern over the continuing cannabis-related arrests, and demanded an immediate halt to these detainments. Many claimed the Bill's initial intent was to exclusively address private usage, not industrial or commercial uses. There was only cannabis utilised for industrial purposes, according to several speakers, who denied that "hemp" even existed.
The Committee was informed that the Bill did not effectively address the taxation, regulation or accessibility of the cannabis business. Additionally, because it ignored the effects of earlier criminalisation policies on the sectors of the population most impacted by the country's drug policy, it ran the danger of maintaining the present disparities and injustices in the criminal justice system.
Other presenters countered that since cannabis could impair the efficacy of other medications, its use for medicinal purposes had not been authorised in South Africa. These concerns had been highlighted in situations involving cancer patients, and those taking medicine for neurological disorders.
The Chairperson thanked all the presenters, who said that hearing different points of view was very beneficial for the Committee, since it promoted democracy. Next Friday, there would be a chance for the Department of Justice and Correctional Services to address the issues brought up and the suggestions provided. The Committee would start debating the Bill after that.
Meeting report
The Chairperson welcomed all attendees to the meeting, and indicated that the meeting was a continuation from yesterday and no apologies had been received. Correspondence had been received the previous day from Doctors for Life, and they would be sharing a presentation. All speakers would have ten minutes for their presentation, which would be followed by questions from the Members and the Department of Justice and Correctional Services (DoJ&CD).
Cannabis for Private Purposes Bill: Industrial cannabis or hemp clauses
Rastafarian National Council
Mr Etienne van Zyl spoke about the inclusion of industrial cannabis, or ‘hemp,’ in the Cannabis for Private Purpose Bill, the problematic terminology (i.e. industrial cannabis, not hemp), a non-evidence-based policy, cannabis terroir, unlocking the landrace cannabis strains, and harm reduction.
Including industrial cannabis or ‘hemp’ in the Cannabis for Private Purpose Bill was irrational because the Bill should deal with private use only, not industrial or commercial uses. Cannabis was an agricultural commodity, so the Bill should not be used to fix inherent issues in the Plant Improvement Act. South Africa had no obligation to regulate industrial cannabis according to the perceived international treaty obligations.
There was no such thing as hemp -- only industrial cannabis. The Single Convention on Narcotic Drugs 1961 (SC61) uses the terms industrial cannabis, or cannabis for industrial purposes, not hemp, which is the standard international terminology. Adopting the term industrial cannabis would unlock the social and economic benefits of the plant.
The Chapter 1 definition of hemp states that it is a plant of the genus cannabis, which has a concentration of tetrahydrocannabinol (THC) in the leaves and flowering heads that does not exceed the prescribed percentage that was unspecified, and was cultivated under a law that regulates its cultivation. The percentage still needed to be filled in -- what were those percentages? There was no reason to have arbitrary THC limits as there was no legal or scientific backing for regulating industrial cannabis in terms of its THC levels. The United Nations Conference on Trade and Development (UNCTAD) and the International Drug Control Conventions (IDCC) did not define industrial cannabis by THC percentages. They noted that there was no taxonomic classification for industrial cannabis.
Cannabis terroir was useful for explaining the differences between case uses for cannabis.
Changing regulations accordingly would enable rural communities to utilise an economic resource and indigenous knowledge systems (IKS) base to which they already had access.
The Portfolio Committee had the opportunity to leverage the Bill as a harm reduction tool. Harm reduction did not mean keeping customers away from their preferred substance, but promoting pathways that lead to safer sources, better education and treatment options free from criminalisation, stigmatisation and marginalisation. Instead of intensifying criminalisation measures, rather develop pathways to enable safe consumption and drug education and remember that not all drug use is problematic. If citizens want to cultivate a plot of cannabis for industrial purposes, why should they not be allowed to do so if it affords them alternative options for shelter, food, medicine or recreation?
(See attached for full submission)
Discussion
Mr S Swart (ACDP) asked Mr Van Zyl about the THC limit of cannabis on industrial cannabis in the hemp context. This was intended to be a European restriction, but South Africa had different climatic conditions. For example, the challenges that the amaphondos experienced, and the biomass that often had to be imported -- there was a hotel built in Cape Town where industrial cannabis could not be used because of the legal constraints. The hemp used was imported, to the detriment of the local industries. There was an indication of there not being a prescribed THC limit and what the intended limit should be, given the South African context.
Ms Y Yako (EFF) appreciated the presentation as it highlighted the harms of alcohol and its contribution to crime in the country.
Mr Van Zyl apologised for rushing through the presentation and leaving some information out. What did Mr Swart mean by local uses? The THC limits were arbitrary, as the point of processing the plant could be divided into different streams, to separate the flower, seeds and stalks. THC should not be an issue because cannabis has little to no THC in the plant, and needs to go through a process, similar to the process barley goes through, for alcohol. Similarly, the cannabis flower goes through a process called decarboxylation, whereby the acid part of the THC acid is removed and makes it into an active compound. There was no real harm. All the aspects that the Plant Improvement Act and the hemp permits required were ridiculous and acted as another barrier for farmers.
Ms N Maseko-Jele (ANC) requested that the Department provide information about the scientific views taken into account to come up with this Bill. With there being different views on the Bill, what was Mr Van Zyl’s view on the adoption of the Bill?
Mr Van Zyl acknowledged that there was a need for the Bill, despite there being unconstitutional elements which had been addressed previously in Parliament. Time needed to be taken for the industry to be made accessible and just. Numerous communities had suffered from violence from the apartheid government, and it was criminal that this had continued into the democratic system. To restore justice, approaches to this should be considered. Rushing into adopting the Bill would cause more harm than good, even when looking at human rights.
Keep the Cannabis for Private Purposes Bill for private purposes only. Commercial activities should be handled by the relevant department, such as the Department of Trade, Industry and Competition, which they were to an extent, but the public was unaware of the machinery happening in the somewhat political background, which affected what the Bill would do. Revisions of the Bill would waste the Portfolio Committee’s time and taxpayers’ money, resulting in constitutional challenges. Instead of trying to push it through in the Sixth Parliament, a human rights approach should be used to revise the input given by members of the public. This should be done in a manner that serves democracy and serves human rights.
Marijuana Board of South Africa
Mr Thapelo Khunou emphasised what the Rastafari National Council had said on the issue of hemp, because there was a challenge which was government not knowing the THC level that had to be put on hemp. There was a proposal to look at the 5% THC, but some landraces went up to 8%, so the landraces should be considered. There was no difference between cannabis and hemp -- it was a legislative statement. This was one plant that should not be separated. Hating the THC plant was hating the female part, which was equivalent to GBV. There needed to be an advancement in today’s discussion to ensure that those who dislike cannabis could not strike.
The board proposed the adoption of the Marijuana Board of South Africa as the national service provider in cannabis -- one board, one nation. That was the only way to streamline cannabis economic activity. The board had tried using similar regulations for alcohol, but some police stations and commissioners had refused to sign the dealer’s document which legitimised their business. They had moved from the point of decriminalisation to a point of legalisation, whereby government officials should stop doing business for themselves and must give opportunities to communities of interest. There should be institutes such as the Marijuana Board which must be nationalised, and have a National Cannabis Development Council which has been set up and has done a lot of hemp permits and hemp awareness in the past. Many people had hemp permits because of the work of the National Cannabis Development Council which had gone around the country doing permit readiness, which resulted in the many issued permits today.
The challenge faced involved hemp seeds that were nowhere to be found. It had been said that there was Lumnar 1 and Lumnar 2 in South Africa. Where was the research done on hemp by the National Hemp Foundation in South Africa, and where were those seeds so they could be used? Politicians and director generals (DGs) need to be straightforward about their stance, as this was the time for legalisation. Parliament needed to look into more than hemp, but the entire species. As mentioned by the previous speaker, foreign hemp products had already entered stores such as Dischem and Clicks -- what had been the negative impact of this proliferation of foreign hemp products when there was no respect for products that were produced locally? Government departments were not working with the Marijuana Board. The board had approached the Department of Trade and Industry to propose working together to fast track the economy on the ground to ensure that people understand the hemp industry, but the Department had never offered them the opportunity. Why should the board keep providing information when they did not benefit from this?
The board would not continue to attend meetings when there was a moratorium about cannabis arrests. The Cultural, Religious and Linguistic (CRL) Commission had ruled in 2012 that Parliament must create a moratorium on cannabis arrests, and Parliament had delinquently failed to meet the Chapter 9 of the Constitution to date and comply with Justice Zondo’s judgment on cannabis, which would have ensured that there would be a law by now. The challenge was that marijuana users were still being arrested. Members of the Board from the Eastern Cape encouraged the government to free everyone who had been arrested for marijuana. They call for the expungement and moratorium, abolishment of cannabis licensing for previously disadvantaged individuals, elimination of the administration fee with the South African Health Products Regulatory Authority (SAHPRA), encouragement for the formation of community-based seed banks of indigenous landrace and their multiplication, and recognition of the IKS and an integration plan into higher learning. The legal market for cannabis should be legalised, and those involved recharacterised from criminals to businessmen.
(See attached for full submission)
Discussion
Ms Maseko-Jele recommended that the Department assist Members of Parliament in addressing the many issues that Mr Khonou had raised. For example, the issue of arrests and coming up with structures should be noted and dealt with, so the community is satisfied. The Department should also assist with ensuring that the Portfolio Committee was aware of issues relevant to them, to eliminate some of the issues.
Mr Khonou confirmed that Rastafari people were still a target for arrests. For example, the Gauteng province currently has a new brigade of police who wear green. They violate the rights of Rastas, arrest the priest, and carelessly visit traditional healers. The courts did not want to deal with these cases -- almost 11 cases were struck off the roll for dealing in dagga in the Steve Tshwete Magistrates Court in Gauteng. He asked the Committee to promote a moratorium on cannabis arrests, otherwise the board would not attend further meetings when their demands were not being met. How would the Marijuana Board know about the follow-ups that Ms Maseko-Jele had mentioned?
The Chairperson assured Mr Khonou that the Committee’s meetings were public, and so were the deliberations, so decisions made before the Bill went to the National Assembly would be made public.
Rastafari National Council
Dr Motheo Koitsiwe rejected using the term 'hemp,' as Rastafari people dealt with 'ganja.' Those who want to explore low THC dagga to create a comparable dagga creed at a low cost should be catered for. Hemp permits should not create high entry barriers for indigenous farmers from IKS communities. The Rastafari church wanted full authority to celebrate the cannabis sacrament, to have seed breeding, cultivation and so on for religious purposes, and to have provincial and national connections. The term ‘Rastafarian’ should not be used in Bills as it was incorrect -- it was 'Rastafari people.' There were plans to raise awareness about cannabis and the exclusion of Rastafari people in the cannabis industry, accreditation and training, human capacity building and integrated community skills transfer, and a demand for a moratorium on cannabis arrests and engagement with researchers and higher education institutions. The Secretary-General of the Council, Dr Thandeka Kunene, was also available to answer any questions.
(See attached for full submission)
Discussion
Ms Maseko-Jele asked about the THC percentage restrictions. If 0.2% was insufficient, what would the ideal percentage be?
Dr T Kunene explained that the less than 2% THC levels were unrealistic, and research done over a 14-year study with the Agricultural Research Council (ARC) had found that the southern hemisphere percentages did not go over 2%. Cattiva from France may be labeled 0.2%, but over the years, the percentage decreases. The legalisation of hemp in South Africa was based off 0.2% results, because it could not be accessed at lower than 0.2%. However, other countries such as Australia and parts of China allow between 0.2% to 5%, which was still a safe “undrugging” percentage. Local cultivators had up to 5%, which did not make one high.
Ms Maseko-Jele asked what the preference would then be.
Dr Motheo reiterated that 5% would be workable and appropriate.
Dr Kunene stressed that a female plant with 5% THC, had a male part with less than 5%, so limits should specify which parts they restrict. Limiting the female plant to 0.2% destroyed the male part of the plant.
Dr Motheo added that the IKS law drove the Council regarding what had been presented, and its own natural laws of engaging with natural products.
Mr Max Ozinsky
Mr Ozinsky believed that government was being negligent in the way this Bill was being brought out, with the response to the constitutional court judgment and the way irrelevant issues were being brought into the Bill. People were still being arrested for exercising their constitutional right to possess cannabis. For example, in March 2023 in the Western Cape, a Rastafari person died during a police raid on his residence. On 21 March, which was Human Rights Day, there was a march to the George police station by the Rastafari community about that issue, which showed the serious approach that the government needed to apply to such matters, and it had not been shown there.
The Department of Justice (DoJ) was problematic in the way they were behaving -- like this was apartheid South Africa, and apartheid policies should be followed concerning cannabis. The DoJ had opposed the court case that ended up in the constitutional court in 2018 -- from the magistrate's court to the high court in the Western Cape, to the Supreme Court of Appeal in Bloemfontein, and to the Constitutional Court, which had given judgment against the DoJ. Yet, the Department of Justice was the one providing drafts and advice to the Portfolio Committee about moving forward, and there was no indication of that judgment being considered.
On the issue of the amount of cannabis a person could possess in private, it was clearly unconstitutional to set a limit on the amount for personal use because the constitutional court had already finalised that matter, yet the Department had presented a Bill which wanted to set a limit on the number of plants or cannabis people could possess. The constitutional court judgment -- paragraph 111 on page 60 -- indicates that the court agreed to there being no need to set a limit on the amount that should be possessed, but the Bill had limits. The DoJ was setting the Committee and government up for endless court cases on this matter which they would lose, but the Department refused to change its view on the matter, and many other unconstitutional issues. The DoJ did not accept that people had the right to private use, or that the sale of marijuana in South Africa would be legal, which was problematic.
Hemp had no relevance in this matter, because legislating on the issue of private use did not need differentiation between different hemp or cannabis varieties, as people had the constitutional right to use it privately, so why would one insert other limits on this constitutional right in a Bill? The DoJ was raising the hemp issue to delay the Bill, confuse the matter, and create problems for the government once the Bill was legislated. The Department and government needed to get serious, as four and a half years after the Constitutional Court judgment in September 2018, there was still no policy on cannabis or hemp from the ruling party, yet millions of people in South Africa used hemp. Most of them break the law by using cannabis and open themselves up to jail or police action.
There was no white or green paper on cannabis use or coordination between government departments on the matter. The DoJ, the Department of Agriculture and the Department of Trade and Industry do not indicate that there is cohesion or one document they agree on. All the processes they point out had taken more than four years, with no conclusions. The Committee should conclude the matter by sending the Bill back, removing all the references to hemp, instructing the DoJ to read the Constitutional Court judgment, and taking the essential points from the judgment into the Bill, which would result in a simple Bill.
Regarding the sale of cannabis, there was a huge illegal market in South Africa that had existed for hundreds of years. Millions of South Africans buy and sell cannabis every month. According to Parliament, that was illegal, and this process needed to be decriminalised. The only way forward was to deal with cannabis in the same way cigarettes were dealt with, otherwise the existing market would persist long after the ruling party had gone.
Discussion
Mr Makubela Mokulubete, Legal Advisor, DoJ, referred Mr Ozinsky to two paragraphs in the ConCourt judgment. In paragraph 80, the court referred to other foreign jurisdictions that had decriminalised cannabis, and a list of those was made in the judgment. The paragraphs read: "In the jurisdictions referred to above and others included in the addendum, different amounts have been fixed as small amounts. In the present case, like in the judge in the high court, I would leave the determination of the amount to Parliament." What did Mr Ozinsky make of that paragraph, because the essence was that quantities were left for Parliament to determine, and what quantities were sufficient for personal use?
Due to poor connection issues, the Chairperson struggled to get Mr Mokulubete back on the line.
Ms Maseko-Jele admired the way in which important issues had been brought to light by Mr Ozinsky’s presentation. When the Department assisted with this, decisions and interpretations should not create conflict between the Committee and communities because there should not be a conflict about the percentages. It should be dealt with so that the Committee and the community meet each other halfway. She asked the Department to send the judgment to the Members so they could familiarise themselves as they received these presentations.
The Chairperson encouraged the Department and the Committee to re-read the judgment, and the secretary would send a link through which it could be accessed. It was imperative for the judgment to be re-read by all the parties involved.
Mr Ozinsky responded to Mr Mokulubete's question, explaining that the judgment would have said that Parliament should write the law because that was the role of Parliament. However, the question was how did one go from Parliament having to write the law, to putting things into the law which go against the general tone of the judgment. Parliament had the duty to write the law in terms of the constitution, but it was a big jump from that point to limiting the amount of ganja that could be possessed. The DoJ needed to justify the need for the limit, and whether the limit was constitutional. The difficulty the Department would have in that respect was the arguments that the Chief Justice himself had used when he questioned what the cannabis would be used for. For instance, the amount of cannabis for personal use differed from making oil from cannabis. The Chief Justice had gone in-depth into the matter of the amount required, which differed from the different uses to which people had a constitutional right. The Department of Justice and the Bill completely ignore that issue. Suggesting that a person could possess only six plants was outrageous, because it was insufficient for personal use, and would lead to the illegal purchase of cannabis from someone else. The Department had taken the old apartheid approach, which put cannabis in a criminal position, and the Committee must deal with that.
The proposals before the Committee and Parliament were misleading, and proper public hearings were arranged in communities where there would most likely be many people who use cannabis and would raise these concerns, not only the Rastafari community.
The Chairperson assured Mr Ozinsky that all these concerns would be considered during the deliberations, and the Department would have to account for rationality and constitutionality.
New Race Consciousness (NRC)on hemp
Mr Inity Thulo Mpholo spoke about hemp permits, commercial trials, and hemp permit conditions set by the Department of Agriculture, Land Reform and Rural Development (DALRRD), and the national hemp and cannabis masterplan.
(See attached for full submission)
Discussion
Mr Mokulubete confessed that he had received mixed signals about the different understandings of cannabis and hemp. The presentation's third slide showed a distinction between the two, while other presenters indicated no difference between the two. The slide speaks about 83 cannabis licences and 371 hemp permits that had been issued. What were the differences between cannabis and hemp, and could they be determined in terms of the THC content, height, width or flowering patterns of the plant?
Ms Maseko-Jele asked who had excluded Mr Thulo and his team, and how he would prefer to be included. For example, the information about today’s hearing was made public, and there could be allegations from people who chose not to come and would then state that they had been excluded. The matter of exclusion was concerning and must be addressed. This information was publicly available on the website, for instance.
Mr Thulo explained that there was no significant difference between hemp and cannabis, the only difference being that one was a female plant, the other was a male plant, and one had more THC content than the other. The NRC made use of hemp and cannabis in the same way. The Rastafari community should be able to regulate the cannabis plant, as they understand the plant and how it should be regulated. This differed from how the South African government wanted to separate the plant.
The masterplan had outlined the stakeholders, and was spearheaded by the Department of Trade and Industry and the Department of Agriculture, which excluded the Rastafari aspirant farmers and community. The President mentioned KwaZulu-Natal, the Western Cape and the Eastern Cape, and excluded many provinces that could also benefit from cannabis production. The President seemingly had outdated information, indicating the importance of updated research to include all provinces. Rastafari people should be included at the research level.
Ms Molebogeng Semela
Ms Molebogenge Semela submitted that there should be an allowance for planting hemp, similar to other crops, and permits should not restrict cultivators to 50 hectares. She said 50 hectares did not provide sufficient space for hemp products -- a minimum of 2 000 hectares would be more ideal. The Rastafari community needed exemption based on the past atrocities the communities had fallen victim to. With the cannabidiol (CBD) and THC levels derived from hemp, it was one plant that was divided into a male and female part, and the male part did not have volumes of THC, and the volume of the CBD that they wanted was insufficient. They should visit the law that states THC levels on hemp must at least be 35, because the sun was stronger than western environments.
The University of Free State had data indicating that SA plants were good quality. There just needed to be better policies that matched the environment, and there were no unnecessary arrests or revoked permits. Hemp has THC, and this must be acknowledged. Research was being promoted more than commercialisation. The Rastafari community was ready to do business and was ready to be taxed for their end product, unlike attempting to regulate the plant itself, which puts cultivators under pressure. These apartheid laws needed to be eradicated, and more intense engagements conducted where indigenous people could teach government about the plant because they had the relevant experience. Professor Motlalepula Matabisa, of the University of Free State, could attest to South Africa not needing to import seeds.
The issue of commercialisation was not relevant to the DoJ. This should be discussed with the Department of Trade, Industry and Competition, the Department of Agriculture and the Department of Health.
Discussion
Ms Maseko-Jele asked why there was no correlation between information from the universities and the departments. Where was the missing link between the researchers and the DoJ?
Ms Semela said she assumed there was a communication gap between the different departments, which caused delays and a lack of communication with the Rastafari community. The Rastafari community was rarely consulted on policies and legislation, which caused delays. Only this Committee invited the community to these hearings -- the other departments did not communicate with the Rastafari community, which was why the Rastafari National Council had even demanded a meeting with the President so that he could shed light on these delays, and explain why there were apartheid restrictions and why the community was not free to exercise the value chain of hemp and cannabis.
Mr Mokulubete asked for clarity on there being one plant with different THC concentrations and CBD content which was not psychoactive. In the past, it had been said in news reports that the spraying of the crops was because the plantation was at a certain height, and if the height was at a certain level, then it meant it was cannabis with a high THC content. If the plant was at a certain lower level, it meant that it was hemp which did not have a THC content. Both plants would have the tops, which were folded and smoked, and if one was THC, then one would get high, and if it was CBD or the lesser THC content plant, one could not get high. Were these two different plants -- one without THC and the other with THC in a higher concentration, or was it one plant with different parts in it that had different concentrations of THC and CBD concentrations?
The Chairperson asked where Mr Mokulubete had got this information from.
Mr Mokulubete said he had got this information from various newspaper articles and research papers, and could not give a specific reference. Newspaper articles focused more on the spraying of hemp and cannabis fields, where the responses had been from the police as to the reasons for the spraying. The assumption was that the sprayed fields had a high THC concentration, which was illegal at the time.
Ms Semela clarified that height did not determine whether a plant was hemp or cannabis, because the female could be big -- it was a matter of the volume. If the THC concentration was higher, then it was a female plant, so when someone smoked it for recreational purposes and they did not feel relaxed, it was hemp. It was one plant with hemp, CBD, cannabigerol (CBG), delta nine and other benefits from the one plant. The one with low THC concentrations was defined as hemp. The Department of Agriculture needed to revisit the permit regulations because they could be under the impression that they were planting hemp which would produce volumes that had no psychological effects. It was disappointing that the Department chose to read research papers that were outdated for information, instead of consulting the Rastafari community, whose information should be included in these policies.
Ms Maseko-Jele requested that the Department provide the research so that the Portfolio Committee could assist with processing this Bill. Without this information, the Committee could not respond to what had been raised. The Department should share the summarised research documents so the Committee could make informed decisions without delaying the Bill, which should be finished before the Sixth Parliament.
The Chairperson noted that a lot of information had been shared on the issue of THC, which was in their pack from which the Department had based its stance, but they could provide updates.
Fields of Green for All
Ms Myrtle Clarke said Fields of Green for All had previously submitted comments and given oral representations on two occasions. Questions asked previously were still unanswered. Where was the credible, scientific and academic evidence upon which this Bill was based? Why were there questions right now that were very basic questions in terms of the THC content and the nature of the cannabis plant at this late stage in the drafting of this Bill? Would the passing of this Bill through Parliament proceed without evidence? Who would count the dagga plants? Would the South African Police Service (SAPS) be responsible for counting, measuring the plants, and measuring the THC levels of an estimated 20 million South African cannabis users, cultivators and traders so they could erect the irrational and unconstitutional criminal penalties suggested in this Bill? The word decriminalise had often been used to describe cannabis in South Africa after the 2018 Constitutional Court judgment, but this was highly inaccurate as this Bill showed no signs of decriminalisation for cannabis users, cultivators or traders.
Criminals were people who harmed other people. It was 1 056 days since her partner Julien was shot at 2 am in their bed, and the person who shot him was a criminal, not her and her dagga plants. It was also criminal that the SAPS had never investigated his murder -- nothing could be done about that -- but something could be done about the threat of criminalisation hanging over the heads of the South African cannabis community. She would never give up the fight for evidence-based laws and regulations.
An email sent yesterday by the head of the legal team explained the exact legal parameters of plant counting and the law, and the Committee should take note of the facts contained therein. Civil society would be forced to present these facts in court if these legal facts were not considered. This would be at a personal expense, but the government would rest easy because all expenses related to another court challenge would also be at taxpayers' expense, which was ironic and a travesty of justice. Fields of Green for All would like the Committee to note that of the 19 submissions presented over the two days, 16 organisations, companies and individuals were directly aligned with Fields of Green for All. Their aims, objectives and values were the same, and they all supported each other. Their objections to this Bill should be seen as one voice, as they were all in a clear majority in the room.
The Committee should note the presence of Doctors for Life, which was the only prohibitionist group represented here. In 2017, Doctors for Life and the state were the reasons the case was rendered part-heard in the Pretoria High Court. The opposition had spent three full days arguing against the livestream coverage of the trial, and they had won that case in the Supreme Court of Appeal with a cost order. To date, neither the attorneys nor the court sheriffs have been able to locate Doctors for Life to effect that cost order and reclaim expenses. The state had also not paid that cost order. It was surprising to notice the presence of Doctors for Life here, as they remained in contempt of court, as did the state.
Fields of Green for All had spent six years researching, compiling and publishing their manifesto. This guiding document had been introduced to the Committee during their very first presentation. Yesterday they were asked what their solutions were. The solutions were that this Committee had had five years to come up with credible, evidence-based solutions, but had ignored the hard work of civil society. All 15 entities mentioned above, plus many more organisations, companies, and individuals in South Africa and around the world, supported this document. They suggest that for cannabis in South Africa -- the people’s plant -- a full spectrum manifesto for policy reform should be read, and all the questions raised in the past two days must be answered in a clear, summarised and easy-to-read format in the document. There were also over 2 000 academic references that were footnotes in the document, and they would answer all of the Committee's questions. The work had been done and should be read.
Fields of Green for All had special consultative status with the United Nations Economic and Social Council. They were considered leaders in their field and had presented their position to communities in every corner of the country, and from Nigeria to Montreal, New York to Vienna. Next week, she would be speaking at the African Futures conference in Germany. From the invitations of the university there, and from the universities of Bristol and Cape Town, internationally, their voice was heard, but their own government ignored the content of their submissions and those of their colleagues over the last two rounds of these hearings. Notably, comments were invited only for sections on the draft Bill pertaining to industrial cannabis. Why had the subject of the use, cultivation and trade of industrial cannabis been included in a Cannabis for Private Purposes Bill, but no regard was given to the personal and private use of industrial cannabis? Where were the protections for uses for the unique, diverse, and climatically appropriate landrace that had been the cornerstone of rural cannabis cultivation in South Africa for centuries? This threatened the importance of hemp varieties, pollen drift and unscientific THC thresholds.
This plant should be regulated according to the end user, not according to the cultivation. These debates about THC levels, heights, CBD and so on were irrelevant. This should not be regulated according to cultivation, but according to end-use. Forget about THC and moral judgments about the effects of cannabis.
Fields of Green for All’s position on the Cannabis for Private Purpose Bill remained unchanged. Within the far-reaching constituencies, including civil society organisations engaged in intensive work around legalising cannabis use in South Africa, there had not been one credible individual, organisation, academic institution or expert who believes that this Bill would pass constitutional master. Criminal offences continued to make up a large part of the draft bill,but scientific evidence of the harm that would justify such harsh penalties was just not there. The continuous laborious breaking up of the definitions of cannabis, quantities of cannabis, cannabis and privacy, and cannabis for communal, religious, traditional use and cultivation, was a symptom of the lack of awareness on the part of the legislature on the dire need to reform the relationship between cannabis and law enforcement. Work was being done on all purposes cannabis, in line with the promises made by the President in numerous State of the Nation Addresses (SONAs). This Committee should blame itself for wasting five years on an unconstitutional bill. The upcoming elections could not be used to push this Bill through and force the organisation back to court. The Committee should note that cannabis was stored in the fat cells of the body for approximately 40 days, the presence of cannabis presented in a urine or blood test did not indicate impairment.
(See attached for full submission)
AfriStar
Mr Nicholas Heinamann spoke about the international treaties and definitions of industrial cannabis/hemp, provided the interpretation and implications for an enabling industrial cannabis/hemp regulatory environment, and quantified landrace production in South Africa.
(See attached for full submission)
Discussion
Ms Maseko-Jele asked what should be improved in the existing Bill.
Mr Mokulubete indicated that Mr Heinemann’s presentation used the terms industrial cannabis and hemp interchangeably -- was there a difference between the two? The new clause related to hemp commercialisation refers to hemp and not industrial cannabis -- was there a risk of creating confusion by referring to hemp instead of industrial cannabis?
Mr Heinemann recognised the ways in which there were attempts to regulate cannabis by THC levels for industrial purposes. There was no real international definition for hemp. It resulted from prohibition so that cannabis could still be used for industrial purposes, which were lower THC versions. Some modern regulations in the European Union and the United Nations Farm Bill define hemp by THC levels. Traditionally hemp was not defined by THC levels, but by its uses. Defining cannabis as hemp excluded the genetic plant and farmers from the industrial value chain.
To improve the Bill, the country should welcome the idea of defining things regarding THC levels, as no UN convention or treaty enforced that. These definitions should then be accounted for, as they would exclude the volumes of cannabis being produced in the country. If the cannabis being grown by traditional farmers could be utilised, there would not be a need to reinvent genetics or teach people how to produce it because they were already producing. All that needed to be done was to facilitate the process into value-added commodities.
Cannabis Action Group
Mr Andre du Plessis shared information about the work of the Cannabis Action Group, the work they had done and the responses they had received.
(See attached for full submission)
The Chairperson allowed Mr Du Plessis to ask questions, as he had requested.
Mr Du Plessis asked Mr Mokulubete what made it seem logical for one molecule to be presented in three different ways -- public/private, medical/non-medical and religious/non-religious -- and yet there were three chemical effects and in some settings, they would involve criminalising citizens. What science was provided for this?
Mr Mokulubete said that the DoJ was not responsible for the commercialisation, but was responsible for the courts and criminalisation of certain acts. With this Bill, they had responded to the order given by the Constitutional Court in the Prince judgment, which was the Department’s foundation to have the Bill the way it was now. The Constitutional Court had given an order to decriminalise the use, possession and cultivation of cannabis and had left it open for Parliament to come up with the quantities that would be sufficient, which would then be legalised. The Bill strictly complied with that, which limited the amounts per individual for possession and use. The Constitutional Court had been specific on how it would not decriminalise dealing in cannabis, and what had been done was to provide those quantities.
The Chairperson said Mr Du Plessis wanted to know the criteria to determine those quantities.
Mr Mokulubete explained that the quantities had been previously determined, so there was no scientific backing as to what sufficient amounts for personal use would be. The quantities in the Bill were in accordance with practices from other countries. Members of the public had been asked to assist, and there was still a lack of information regarding the quantities that should be included in the Bill. If the limits set in the Bill were exceeded, there should be penalties.
Ms Maseko-Jele said she had been in hospital when the Bill was given to the Committee, and apologised for her previous request for more information. With the decriminalising, specifics were not provided and were left to Parliament. Mr Makulubete had said other countries’ research had been considered -- why was the situation in South Africa not considered? There had been a presentation from SAHPRA, with information that referred to European THC levels and did not apply to the South African context. If it had to be tweaked, could the SA context be considered moving forward, especially after the presentations and information provided in this meeting, to ensure the Bill was in line with the issues raised that were South African and avoid the adoption of apartheid practices and laws?
Mr Mokulubete said he would recommend in full when a summary was provided, and the different countries and their experiences were tabulated. There was no scenario whereby enough data on personal consumption was known, hence other countries’ research had been considered. There were no quantities in any legislation where cannabis was concerned. The intention had been to have a full-blown decriminalisation of cannabis without restriction, but the DoJ could not commercialise, which was why the Bill made provisions for other departments -- agriculture, and trade and industry -- to come up with the commercialisation legislation for cannabis.
He said the Department would provide documentation when returning for the briefing on the submission.
Mr Gareth Prince
Mr Gareth Prince spoke about the lack of public insight into the making of the laws and drafting of the Bill, the ways in which cannabis could be South Africa’s intellectual property, given its peculiar nature and ecological compatibility, and the impact on imported variants, which was reckless.
(See attached for full submission)
Discussion
Ms Maseko-Jele acknowledged the complexities of the Bill, and that the views of other departments were important in the finalisation of the Bill. To do justice to the Bill, the Committee should work on its own summaries but also get the input of the departments that should be involved. How could the Committee respond speedily to the issues that had been raised?
Mr Prince said that the tagging of the Bill had been done incorrectly. This issue had been mentioned, and the input of the parliamentary legal advisor had been given, but it was still proceeding as a section 75 Bill, which was fundamentally a constitutional defect. The issue of tagging affected public participation, which was one of the most vocal grievances, because there had not been meaningful public participation. In the past four and half years, the views of the Rastafari community had not been taken into account in the construction of this Bill, whereas it could have demonstrated to the world how the South African public worked with the government to support its aims. That chance had been missed due to the narrow views imposed by the DoJ, which was unfortunate.
Parliament should have created a Bill that complied with all of the constitutional obligations promised to citizens, and be comprehensive. The Bill, being called the Cannabis for Private Purposes Bill, proved the contradiction in the terms being dealt with. Cannabis must be regulated in the same manner as alcohol and tobacco, and not by putting more restrictions on cannabis. Cannabis must be removed from being the responsibility of the Criminal Procedure Act, the Drugs and Drug Trafficking Act and the Medicines and Related Substances Act. These Departments could not have primary oversight -- their oversight could only be secondary in the same way the DoJ did not regulate alcohol and tobacco, which fell under the Department of Trade and Industry. The issue of cannabis was not an issue for the criminal justice system or the police, it was a socio-economic issue, and the cannabis community should not be treated worse than the alcohol and tobacco community, as this violated numerous rights. There was a cannabis masterplan, while there were no master plans for alcohol and tobacco. Cannabis offers a realistic plan of employment opportunities, restoring dignity and freeing people, and preventing the DoJ from fulfilling its mandate. The cannabis community could not have an economic plan and regulations that arrest cultivators. The government should encourage cannabis cultivation and regulate the processing, not production. The community wanted to work with Parliament, and had not been awarded that opportunity.
Dr Barbara Loots, Parliamentary Legal Advisor, recalled doing an opinion on tagging in which she had highlighted the impact of a change of tagging from 75 to 76, and how a Committee's engagement with the public fell in the National Council of Provinces (NCOP) phase. Where they were allowed to comment on a phase in tagging was between when a Committee had decided on what it would put in the A list, and before the second reading and the National Assembly (NA). At that stage, when they knew what the Committee’s decision was as to what it would recommend as changes, they could assess the impact and advise the Joint Tagging Mechanisms (JTM) to possible changes. This would have to be effected before the second reading and before it was sent to the NCOP for processing so they know how to process the Bill regarding public participation. Issues put in now were not decisions of the Committee yet -- they were proposals that the Committee was considering for possible inclusion, so that was why a tagging change recommendation could not be made at this stage. There were no definite documents with the decisions of the Committee, so that would be the A list that the Committee would be considering. The issues of hemp and commercialisation were possibilities that were being put to the public for input so that the Committee could consider it in making a decision which feeds into the A list. This would feed into a possible tagging opinion, which would change into a 76 before the second reading and a recommendation to the NCOP on processing it.
Mr Mokulubete agreed that the tagging of the Bill depended on the decision made by Parliament. He stood by the submission of Dr Loots.
Ms Maseko-Jele asked for clarity from Dr Loots and Mr Mokulubete regarding the issues Mr Prince had raised, apart from the enquiries about tagging.
Dr Barbara Loots, Parliamentary Legal Advisor, said that if the Committee wants a commercialisation clause, the wording of that clause would be assessed and advise whether it was a section 76 or not. The possibility was there, but she could not confirm it at present.
Mr Mokulubete said the Department could still do a briefing on the comments received and provide a summary of their responses related to the presentations heard, the arguments and clarifications. However, he could not respond succinctly at this stage.
Mr Prince replied to the comment by Dr Loots, and said that in the event that Parliament decided to make this a section 76 Bill, would the National Assembly pass that to the NCOP? The law states that if the NA failed in their responsibilities then Parliament had failed, so the NCOP being able to deal with the Bill as a section 76 Bill did not excuse the fact that the NA had failed to do so. Did that mean that the NA would have to start afresh if section 76 tagging was made?
Dr Loots said everything in sections 75 and 76 at the point where it went to the NCOP was the same. The changes came when the NCOP went to the second reading. Section 57 of the Constitution allows Parliament to regulate its internal processes and procedures. Parliament’s rules allow for a change in tagging at certain intervals. The Committee was considering options that could potentially change its impact to a 76, and those rules allow Parliament to change the tagging once it becomes aware of a portfolio committee recommending changes that alter the scope of the Bill. That triggered the Section 76 process and that was when it shifted, which was not unconstitutional.
Doctors For Life
Dr Willi Sieling shared his presentation about the hemp legislation in other countries, their effects, and why their research findings could be used to assist in the completion of the Bill in South Africa.
(See attached for full submission)
Discussion
Ms Maseko-Jele noted that the presentation was based on research from overseas and not research based in South Africa. There had been a similar presentation from SAHPRA at the beginning of this process. Would he agree with the presenters that there was no problem with the regulation, but that regulation should be at the user-end stage and not production, considering that SA was a developing country and its people were still developing themselves personally and economically to showcase their skills internationally? If this presentation was used in informing the Bill, did it not impact the view that South Africa was developing, and on the research conducted in informing this Bill?
Ms W Newhoudt-Druchen (ANC), through an interpreter, focused on how Doctors for Life said their presentation was different and stood out from the other presentations. Their submission showed that most of the research was done in America. Was any research done in South Africa? For example, with road accidents, most of them were based in Africa, but earlier presenters had said that the number of accidents due to the use of cannabis was not high in SA. Had Doctors for Life done any research in South Africa and if so, what was it? Was the plant grown in South Africa the same as the one grown in America? Why were they comparing America to South Africa, if the plant was different? Most Departments got their research from Europe, not America. Had Doctors for Life ever engaged with the Rastafari community, whether in SA or USA? Were the THC numbers the same in South Africa?
Dr Sieling said that there was no difference between South African people and American people as far as effects on people were concerned, so the research could be taken from anywhere. What would be different would be the plant. As far as non-human consumption products were concerned, they were not being put into people, so there was no problem there. With the road accidents, one could see that an increase had occurred after legalislation of the drug. This had not happened in South Africa, so that increase could not be documented yet. There were no SA figures that could properly indicate this, because one needs large-scale usage before one could see a percentage change in fatalities, road accidents and so on. These cases involved blood testing and showed it was involved in many car accidents.
South African plants were known for having the highest THC level in the world, and people did not want hemp in their cannabis plantations because it changed the plant by decreasing the THC level, which could not be policed. From a medical point of view, there was no reason to consult with the Rastafari community about their use because the use and the effects were universal. The problem was that when used, cannabis concentrates in fat cells and the myelin sheets that coat all of the nerves in the body, and this coating meant that the effect on the central nervous system was different and could not be related to blood levels. If there was chronic use, there would be a direct effect on the person’s ability to drive. The drug levels had nothing to do with the effects on the brain at all. The Delta THC develops in the manufacture of CBD oil, which was not medicine, was not registered and creates problems within medicine, because it affects metabolism which affects the effects of regular medicine.
Ms Maeko-Jele asked for the purpose of the presentation -- was it to offer motivation for the THC levels, or to provide information on what was happening in America?
Dr Seiling explained that there was no research done in South Africa and the information provided could be used in the SA context, as the effects were universal. The higher the concentration, the bigger the impact.
Ms Newhoudt-Druchen asked for the doctor’s view on using cannabis for medical use, especially for cancer patients.
Dr Seiling said cannabis oil affected enzymes in the liver and changed therapy in a way that had not been studied, because cannabis was not used in world medicine. There was no medical use or medical literature for cannabis oil or medical research on its benefits.
Ms Masek-Jele said the presentation had pointed out that the plant in America and the one in SA were not the same, yet American research was being used in the South African context where there was no research, and he was expecting this research to be accepted.
Dr Sieling said that medical textbooks used the same information internationally. The effect on people was the same, and the hemp plant in America would affect South Africans the same way. There was no medical research on this. Medical research on the use of cannabis came from America at this point. All the medicine in South Africa was from international research applied to all populations.
Committee matters
The Chairperson thanked all presenters and proceeded to confirm the next meeting dates for the Committee and Department.
Mr Mokulubete asked whether the Committee could be called on Friday, instead of Thursday, in light of the information shared from today and yesterday.
Mr Du Plessis had been appointed to assist with the Bill as Mr Robbertse, who was heading the project, was currently unavailable due to ill health, and was wished a speedy recovery.
The Chairperson also wished Mr Robbertse a speedy recovery, as he was a valuable member of the drafting team.
The Committee agreed to allow the Department to present on 2 June, to ensure their presentation was thorough. The budget would be debated on 30 May.
The Chairperson adjourned the meeting.
Audio
No related
Documents
- Media Satement: Justice And Correctional Services Committee Concludes Public Hearings On Cannabis Bill’s Broadened Scope
- Rastafari Nation Council Presentation
- Public Comments Presentation
- New Race Consciousness Submission
- Marijuana Board Responce
- Fields of Green For All Submission
- Doctors For Life Submission
- Cannabis Action Group Submission
- Afristar Comment Presentation
Present
-
Magwanishe, Mr GB Chairperson
ANC -
Breytenbach, Adv G
DA -
Engelbrecht, Mr J
DA -
Horn, Mr W
DA -
Maseko-Jele, Ms NH
ANC -
Msimang, Prof CT
IFP -
Newhoudt-Druchen, Ms WS
ANC -
Nqola, Mr X
ANC -
Ramolobeng, Ms A
ANC -
Swart, Mr SN
ACDP -
Yako, Ms Y
EFF
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