On a virtual platform, the Committee met for its first meeting of the year to hear the Department of Justice and Constitutional Development’s response to public comments on legislation before the Committee. Five submissions were received on the Divorce Amendment Bill and the Department presented its detailed response to the comments. One of the issues discussed was the necessity of retrospective application to safeguard the rights of Muslim women and children. The Women's Legal Centre Trust advocated for a retrospective effect dating back to 27 April 1994, citing the protection of vulnerable women, although the Department expressed concerns over potential unintended consequences and litigation risks. A research note was submitted to aid the Committee in its deliberations. The response also touched on the Bill's broad definition and the imperative for a holistic overhaul of marital laws to ensure the full recognition of Muslim marriages.
The Department responded to the 46 submissions received on the Cannabis for Private Purposes Bill, emphasising that the Bill does not encompass the commercialisation of cannabis, which falls under another department's jurisdiction. It clarified that while the Bill allows for cannabis cultivation, the Minister of Justice will determine specific plant quotas. Responses further delved into various submissions regarding cannabis use, possession, and cultivation in South Africa, highlighting the Bill's universal applicability without racial exclusion but strict prohibition on cannabis sales. Additionally, concerns surrounding private social clubs, job creation, and industry regulation were acknowledged, with plans to address them in forthcoming national legislation. The response also encompassed issues concerning cannabis use among members of the South African National Defence Force and safeguarding children from misconceptions regarding cannabis legality for adolescents.
The Committee agreed to deliberate on the Bills in its next meeting.
The Chairperson began by welcoming Members to the meeting, particularly highlighting its significance as the first Committee session of 2024. She warmly welcomed all Committee Members, including the Deputy Minister of Justice and Correctional Services, Mr John Jeffrey, officials from the Department of Justice and Constitutional Development (DOJ&CD), and representatives from the parliamentary legal services.
Apologies were accepted for Mr M Dangor (ANC, Gauteng).
The Chairperson proceeded to inform Members of the two agenda items for the day: a briefing from the Department of Justice and Constitutional Development on the public submissions received for both the Divorce Amendment Bill and the Cannabis for Private Purposes Bill. In reference to the Divorce Amendment, she reminded Members of the previous meeting held on 15 November 2023.
She then provided a brief summary of the Bill's purpose, which aimed to amend the Matrimonial Causes Act 17 of 1979 in response to the Women's Legal Centre Trust vs. President of the Republic of South Africa judgment. The Chairperson further detailed the public comment period, which ran from 15 November to 5 December 2023, and confirmed that the Committee received a total of five submissions. These submissions, she explained, included one from an individual, another on behalf of the Senzokuhle Advice Center, National, Education, Health and Allied Workers Union (NEHAWU), The Congress of South African Trade Unions (COSATU), Women's Legal Centre Trust (WLC), and two additional submissions, which Members would have received in their documentation package. The package also contained the Department's responses to these submissions and a research note.
The Chairperson concluded by inviting the Department to present its responses to the Committee regarding the Divorce Amendment Bill. She then gave the floor to the Deputy Minister and informed Members that they would have 50 minutes for deliberation following the briefing.
Remarks by Deputy Minister
Mr John Jeffrey, Deputy Minister of Justice and Constitutional Development, extended his own warm wishes for 2024 to all Members. He acknowledged that the Committee had already received the Department's report and responses and expressed his eagerness to yield the floor to their team for a detailed briefing.
Department’s Responses to Public Submissions on The Divorce Amendment Bill [B22 – 2023]
Ms Allison Botha, State Law Advisor, DoJ&CD, took Members through the public comments received on the Divorce Amendment Bill.
Ms Botha detailed the specific comments received on the Bill's definition of "Muslim marriage," including concerns about the vagueness of the phrase "tenets of Islam." She explained that Nahum had commented on the inclusion of Muslim marriages but found the "tenets of Islam" wording too broad, given the seven major sects of Islam with differing interpretations of the Quran and Sharia law.
On the other hand, the Women's Legal Centre Trust (WLC) welcomed the Bill's simple definition, believing it would ease implementation and identification for Muslim women.
In response, Ms Botha clarified the Department's reasoning for using a broad definition. They aimed to accommodate the diverse interpretations of the Quran across different denominations and avoid religious entanglement by defining strict religious terms prone to multiple meanings.
Instead of referencing Sharia law or a more detailed definition requiring further explanation, Ms Botha stated that the Department opted for the phrase 'tenets of Islam' because it is broad and covers a multiplicity of meanings.
Ms Botha further explained the Department's rationale for the broad definition of "Muslim marriage." The Department aimed to encompass the diverse interpretations of Islam across denominations and avoid religious entanglement by using the phrase "tenets of Islam," which broadly covers various meanings.
Regarding concerns about the definition's clarity, Ms Botha noted that the dictionary definition of "tenets" aligns with their intention. It refers to a principle or belief, making it suitable for capturing the core tenets of any Islamic sect or denomination.
She emphasised that this definition would help with interpretation and implementation of the Divorce Act, ensuring its accessibility to all who identify as Muslim.
Ms Botha clarified that the Department does not aim to define a Muslim marriage prescriptively. This, she explained, would overlap with the Department of Home Affairs' function of regulating and specifying marriage validity and registration. She mentioned that the Department of Home Affairs is currently working on its own marriage bill, which would likely include a more comprehensive definition of the term.
Moving on to specific clauses of the Bill, Ms Botha highlighted the inclusion of "Muslim marriage" in section three of the Divorce Act, allowing its dissolution under the Act's provisions. She noted that both NEHAWU and the Women's Legal Centre Trust (WLC) welcomed this inclusion, emphasising its consistency with the Constitutional Court judgment and ensuring legal certainty for Muslim couples seeking divorce.
Ms Botha explained clause three, which extends protection and safeguards to minor and dependent children of Muslim marriages. This aligns with section six of the Divorce Act and was welcomed by both NEHAWU and the WLC for recognising children's rights and providing them with legal protection.
Clause four deals with asset redistribution upon dissolving a Muslim marriage. Ms Botha explained that it allows a court to order the transfer of assets from one party to the other, addressing potential inequalities. Again, both NEHAWU and the WLC praised this amendment as promoting fairness and equitable distribution of assets.
Clause five tackles the forfeiture of patrimonial benefits on marital dissolution. Ms Botha stated that it extends existing provisions in Section 9 of the Divorce Act to include Muslim marriages. Both NEHAWU and the WLC welcomed this inclusion, highlighting its importance in preventing husbands from benefiting unfairly when dissolving a Muslim marriage, especially given the lack of legal recourse for many Muslim women.
Ms Botha discussed clause six, which outlines the Bill's applicability. It covers existing Muslim marriages, even those religiously dissolved before the Act's implementation, if legal proceedings had already begun.
The WLC expressed concerns about this limited retrospectivity, arguing for extending it to 27 April 1994 to address historical discrimination against Muslim women. They believe the potential unintended consequences can be managed by courts, comparing it to the successful implementation of the Recognition of Customary Marriages Act. Ms Botha further acknowledged the WLC's comments and stated that the Department would consider their perspectives as they move forward with the Bill.
Ms Botha reiterated the Department's agreement with the need for the Bill to have retrospective effect. They firmly believe that Muslim women and children deserve protection from divorce, regardless of when their marriages were contracted. This aligns with the Department's commitment to safeguarding the rights of vulnerable individuals and promoting gender equality.
However, Ms Botha acknowledged the need to balance this goal with the potential impact on other parties who might be affected by retrospectivity. Striking this balance necessitates careful consideration of various factors, including the potential disruption to existing arrangements and the complexity of implementing retrospective provisions.
The Department engaged in in-depth discussions with the Constitutional Court to gain valuable insights on navigating this challenge. Ms Botha specifically referenced paragraph 78 of the WLC judgment, which emphasised the importance of striking a balance between providing relief to those who prompted the litigation and ensuring fairness for individuals who its retrospective application could impact.
She highlighted the similarities between this approach and Clause 6 of the Bill, which outlines its applicability. Notably, Clause 6 caters to both existing Muslim marriages, even those dissolved religiously before the Act's implementation, and subsisting Muslim marriages, provided legal proceedings for their dissolution had already begun.
While acknowledging the WLC's suggestion to extend retrospectivity to 27 April 1994, Ms Botha expressed the Department's reservations. Making legislation retrospective is not a simple task, and applying the precedent set by customary marriage cases would not be directly relevant in this instance. This is because the Bill addresses dissolved marriages, while customary marriage cases dealt with subsisting marriages. Additionally, concerns related to unintended consequences and potential disruption to third parties must be considered.
For further reference, Ms Botha directed the Committee to the research note attached to the Department's responses, which delves deeper into the complexities of retrospective application of legislation – see attached
Ms Botha then turned to address general comments received on the Bill. She began by acknowledging a brief summary submitted by an individual, noting its limited utility in strengthening the proposed legislation.
Next, she addressed comments from the Senzokuhle Advice Centre, which commended the Bill's progressiveness in protecting Muslim women and children but also suggested incorporating elements from the Recognition of Customary Marriages Act (sections 7 and 8) into the Divorce Act. Additionally, they raised concerns about potential misuse of section 7.2 and proposed an opt-out option for community property under customary law. Finally, the Senzokuhle Advice Centre suggested including Muslim marriages in existing legislation like the Matrimonial Property Act.
The Department, however, expressed reservations about incorporating sections 7 and 8 of the Recognition of Customary Marriages Act into the Divorce Act. Ms Botha explained that these sections already address matters related to the proprietary consequences and dissolution of customary marriages, with further references to the application of the Matrimonial Property Act and the Divorce Act within those sections. Therefore, specifically including them in the Divorce Act would be redundant.
Similarly, the Department clarified that matters pertaining to the default matrimonial property regime and requirements for valid customary marriages fall under the purview of the Department of Home Affairs and therefore cannot be addressed within the current Bill. As for including Muslim marriages in existing legislation, like the Matrimonial Property Act, Ms Botha emphasised that it is unclear which specific legislation is being referred to. However, she stated that an amendment to the Matrimonial Property Act is not deemed necessary in light of the issues addressed in the WLC case and the existing provisions that apply equally to all marriages, including Muslim marriages.
The Department of Home Affairs' proposed Marriage Bill also warrants mention here, as it aims to establish a broad definition of marriage that would encompass Muslim marriages. This further contributes to the recognition and protection of diverse marital frameworks.
Support for the Bill
Ms Botha concluded by acknowledging the strong support for the Bill expressed by organisations like COSATU and NEHAWU. COSATU particularly emphasised the need for speedy passage and called for a comprehensive overhaul of marital legislation to ensure full recognition of all forms of marriage. NEHAWU echoed this sentiment, viewing the Bill as a crucial step toward much-needed reforms.
The Women's Legal Centre Trust also provided a powerful statement acknowledging the vulnerability of Muslim women during divorce proceedings and highlighting the significant improvements the Bill would bring. Their comments resonated with the Department's commitment to empowering and protecting vulnerable individuals and promoting equality within the legal system.
With this, Ms Botha concluded her summary of the public comments received on the Divorce Amendment Bill. She expressed the Department's appreciation for all feedback and assured the Committee that these insightful perspectives would be carefully considered as the Bill moves forward.
See attached for full response
The Chairperson inquired if the Deputy Minister had anything to add.
The DM stated that he had nothing to add.
The Chairperson expressed gratitude for the presentations from Ms Botha's team and invited Members to share any comments or questions for clarification on the presented matters. Addressing two key issues, she acknowledged that the Bill addressed constitutional defects identified in a Constitutional Court judgment. Regarding the broad definition, she found it acceptable to ensure assistance to all affected Muslim women, irrespective of sect or denomination. The Chairperson highlighted the ongoing development of a comprehensive marriage bill by the Department of Home Affairs, emphasising its potential impact on the current Bill.
Concerning the second issue, she directed her attention to the Deputy Minister, expressing interest in the retrospective application. While acknowledging the receipt of the research document, she sought further clarification, suggesting a brief overview. The Chairperson proposed that the Deputy Minister guide the Committee through the document, covering the essential points for a comprehensive understanding. She emphasised the importance of completing the current process and outlined the intention to delve further into the Bill's details in the next meeting.
Deputy Minister Jeffrey provided an overview of the research note, indicating that Ms Botha would guide the Committee through it. He explained that the Women's Legal Centre Trust had initiated the case, seeking retrospective application to an earlier date, a request denied by the Constitutional Court. Despite ongoing efforts from the Women's Legal Centre Trust to pursue the matter further, the Department's concern focused on marriages ending before or after 27 April 1994. Deputy Minister Jeffrey emphasised the complexity of addressing these cases due to potential disposal of assets after the marriage's conclusion.
Highlighting the limitation to individuals who indicated a challenge to the exclusion of Muslim marriages in divorce proceedings, Deputy Minister Jeffrey clarified that the Act applies to any subsisting marriage, regardless of its initiation date. For instance, the amendment act would apply to a 1980 marriage still in existence if the parties decided to divorce. He then handed over the floor to Ms Botha for further insights.
Ms Botha presented the research notes to the Committee, focusing on clause 6 of the Bill. This clause stipulates the application of the Act to existing Muslim marriages, including those terminated or dissolved in accordance with the tenets of Islam, with legal proceedings initiated but not yet finalised, and subsisted as of 15 December 2014.
She addressed concerns raised by the Women's Legal Centre Trust (WLC), emphasising the onerous constitutional violations faced by vulnerable women who have been deprived of their rights over an extended period. Ms Botha highlighted the WLC's call for immediate retrospective relief to 27 April 1994, for the widest possible group of affected women.
The Department, in response, acknowledged the gravity of the concerns and proposed the inclusion of Clause 6 to provide both prospective and retrospective applications. Ms Botha emphasised that the key issue is not whether the Bill and the Divorce Act should have a retrospective application but determining the appropriate restrictions, if any, on retrospectivity.
Ms Botha specifically addressed the application of Sharia law in the context of retrospective application. She highlighted that the first form of retrospective application, which has no date restriction, applies to any Muslim marriage dissolved in terms of Sharia law at any point. However, it can only apply if civil divorce proceedings have been instituted and not yet finally determined at the time the Divorce Amendment Act comes into effect.
The second form of retrospectivity does have a date restriction but does not require the marriage to have been dissolved in terms of Sharia law. It can apply to Muslim marriages that subsisted as of 15 December 2014, regardless of whether or not that marriage had been dissolved by Sharia law subsequent to that date.
Ms Botha explained that the Department recognised these two forms of retrospective application, each with its own requirements and limits, considering the rights and interests of Muslim women, children, and third parties. The careful consideration of the impact of retrospectivity on various aspects, including assets, was reiterated, taking into account the specifics of marriages dissolved under Sharia law.
(see attached research notes)
The Chairperson expressed gratitude to Ms Botha for providing detailed information on the matter. She then invited Deputy Minister Jeffrey to share any comments or thoughts on the issue.
The Chairperson noted the absence of indications from Members for comments or questions.
Deputy Minister Jeffrey acknowledged the Chairperson's earlier question on retrospectivity, reiterating that the Bill aims to address the judgment in the Women's Legal Centre case. He emphasised that the retrospective nature of the Bill is specifically targeted at Muslim marriages. Deputy Minister Jeffrey further highlighted that a comprehensive review of the marriage and divorce system is underway under the auspices of the Department of Home Affairs.
Department Response to Public Comments on the Cannabis for Private Purposes Bill [B19B – 2020]
The Chairperson acknowledged the team and Members, signalling a transition in the meeting's agenda. With no additional inputs or queries from Members, the Chairperson hinted at further deliberations on the Bill in the next meeting, possibly considering adoption.
Moving on to the second agenda item, the Chairperson addressed the Cannabis for Private Purposes Bill, reminding Members of the previous briefing on 15 November 2023. The Bill establishes a new legal framework for adult private use of cannabis and addresses issues related to children and cannabis in accordance with the Constitution and judgments from the Constitutional Court in 2018 and 2022.
The Bill underwent a public comment period from 30 November 2023 to 19 January 2024, resulting in a substantial response of 46 submissions, including 19 substantive petitions. The Chairperson highlighted that those public submissions raised concerns about the Bill's tagging, public participation, and constitutionality.
The Chairperson outlined the plan for the meeting, first hearing from the Department on their responses to public submissions, followed by addressing legal aspects from the parliamentary legal advisor.
Remarks by Deputy Minister
Deputy Minister Jeffrey provided insights into the Cannabis Bill, stating that its primary purpose is to address a constitutional case. He underscored the Bill's objective of decriminalising cannabis, achieved by excluding it from the Drugs and Drug Trafficking Act. Deputy Minister Jeffrey highlighted a notable provision allowing for cannabis cultivation, subject to specific quantities to be decided by the Minister of Justice. Additionally, he reminded Members of the Bill's historical trajectory, originating in 2020 and undergoing subsequent advertising processes in the National Assembly.
Mr Makubela Mokulubete, Legal Advisor, Department of Justice and Constitutional Development, thanked the Committee for the opportunity to present. He proceeded to inform the Committee about the comments received and the Department's responses.
Mr Mokulubete acknowledged the extensive document, approximately 31 pages, containing substantive comments from various contributors. He proposed highlighting the most significant issues requiring the Committee's attention to facilitate discussion. The key points addressed were as follows:
Advocates for Cannabis Reform
Various submissions called for a regulatory framework similar to alcohol. Mr Mokulubete clarified that such concerns fall under the scope of national legislation intended for the commercialisation of cannabis, not the current Bill.
Fairness and Equality Concerns
Some submissions argued that the proposed Bill deviates from principles of fairness and equality. Mr Mokulubete highlighted restrictions in the Bill, such as the prohibition of smoking cannabis in public or in the presence of children or non-consenting adults.
Questions arose about the right to grow cannabis, especially concerning benefits for black communities. Mr Mokulubete emphasised that the Bill applies universally and does not exclude any racial group from cultivating cannabis. However, the selling of cannabis remains strictly prohibited.
Private Social Clubs
Submissions suggested recognition of private social clubs for cannabis-related activities. Mr Mokulubete clarified that such matters would be addressed in the anticipated national legislation focused on commercialisation.
Public Input Significance
Concerns were raised about public input, with emphasis on the importance of considering feedback. The legal advisor assured that public inputs are integral to the legislative process, and all comments received would be duly considered.
Quantities for Cultivation
Questions were raised about the delineation of quantities for cannabis cultivation favouring highly skilled cultivators. Mr Mokulubete explained that the Bill does not prescribe quantities; instead, these details would be specified in regulations to be promulgated by the Minister.
Enforcement and Police Corruption
Concerns were expressed about enforcing counting of plants and potential police corruption. Mr Mokulubete clarified that the police would enforce compliance with the Bill, and allegations of corruption should be reported to relevant authorities.
Contradictions in the Bill
COSATU highlighted perceived contradictions in the Bill, legalising cannabis but imposing significant restrictions. Mr Mokulubete explained that while the Bill aims to legalise cannabis, certain conduct, such as smoking in the presence of children, must be restricted.
Continued by stating that there is an inquiry into how individuals, specifically runners above the age of 18 still at school, will be addressed under the proposed Bill. He suggested that, in their view, these cases should be handled according to the Section 18(k1) of the South African Schools Act, 1996 (Act No. 84 of 1996), which prohibits the use or possession of illegal substances on school premises or during school activities.
Further, Section 8, which permits random tests on learners, was highlighted. However, Section 8A (14) specifies that no criminal proceedings may be instituted by the school against a learner in whom a conducted test yields a positive result. Mr Mokulubete emphasised that the extreme sanction of arrest should not be the primary means of addressing concerns about cannabis without proof that it poses a direct threat to a child.
He asserted that the Bill permits the use, possession, and cultivation of cannabis, accompanied by penalties for contraventions. While acknowledging that the police are authorised to make arrests in cases of serious contraventions, such as selling cannabis, he underscored the need for national legislation to regulate the commercialisation of cannabis comprehensively.
Regarding the South African National Defence Force's submissions, Mr Mokulubete conveyed their stance that prohibiting members from using cannabis privately while on duty, especially during active duty, would render the Bill unconstitutional. He clarified that the Bill applies uniformly to all citizens, including SANDF members, but it does not permit cannabis use while on duty. The Defense Force's concerns about managing cannabis use were countered with the suggestion that total prohibition is not justified. Instead, regulating use on duty or within SANDF premises is a more reasonable approach.
Addressing misconceptions, Mr Mokulubete clarified that the Bill does allow for the cultivation of cannabis, contrary to certain submissions. He emphasised that the Bill does not prohibit cultivation but restricts it to a number of plants to be determined by the Minister in regulations.
He responded to various submissions, arguing against the inclusion of cannabis social clubs, clarifying that the Bill is limited to individual use, and dismissing claims that the Bill is unconstitutional. He defended the provision that allows adults to obtain cannabis without the exchange of consideration, highlighting the penalties for abuse.
In response to concerns about child protection, Mr Mokulubete stressed that the Bill aims to shield children from cannabis-related harm. He refuted claims that the Bill contradicts itself and asserted that processes under relevant legislation should be followed for child protection investigations.
Lastly, he addressed issues of penalties, explaining that the maximum ten-year imprisonment term is not mandatory but subject to the court's discretion based on individual circumstances. Concerns about the stringent penalty were clarified, emphasising the need for a balanced approach in comparison to substances like alcohol and tobacco.
Mr Mokulubete continued his discourse by addressing concerns related to law enforcement, specifically focusing on the South African Police. He argued that the funds allocated in the proposed Bill might inadvertently encourage continuous unlawful actions by the police against South Africans found in possession of or using cannabis in private for personal reasons. The submission emphasised that fines would be instantly imposed for contraventions of conduct permitted by the Bill, and the police would be authorised to make arrests in specific instances.
Further, it was contended that while a fine of R2 000 might be affordable for most middle and upper-class South Africans, it remains a significant burden for the economically disadvantaged, potentially leading to unjust incarcerations. The submission stressed that the inability to afford fines should not result in unpunished conduct, as the Bill mandates penalties for prohibited actions.
Regarding concerns about children affected by the arrest of their parents for private cannabis use, it was argued that the negative impact on children should not exempt parents from imprisonment. Drawing parallels with other legislation, Mr Mokulubete contended that the court would consider the offender's personal circumstances when imposing penalties, and the Bill already provides for a reduction in the maximum penalty from six to three years.
The submission from the Western Cape contended that Section 4(3) of the Bill criminalises the failure to store cannabis in a secure space inaccessible to a child in public places. However, Mr Mokulubete clarified that this provision is intentional, aligning with the Bill's goal of protecting children from exposure to cannabis. The submission argued against amending this section, emphasising the importance of cannabis regulations to be determined in conjunction with national legislation.
Regarding penalties, the submission from Doctors for Life expressed concerns about the proposed imprisonment term and fine, considering the potential harm to minors from cannabis exposure. In response, Mr Mokulubete highlighted that the penalties were already reduced during the Bill's processing, and the court would determine suitable penalties on a case-by-case basis, considering fines, prison terms, or a combination of both.
The concerns of young people in South Africa were acknowledged, with emphasis on the difficulty of enforcing provisions against second-hand smoke exposure. Mr Mokulubete reiterated that enforcement challenges do not justify leaving prohibited conduct unpunished, and the Bill already includes measures to protect children from exposure to cannabis smoke.
The submission raised issues about public consultation in amending regulations and the proposed amendments to the Road Traffic Act, expressing concerns about potential rights violations of cannabis users. Mr Mokulubete assured that public comments would be considered, even without a specific provision, and clarified that the amendments aim to prevent driving under the influence of cannabis.
In conclusion, Mr Mokulubete thanked the Committee for the opportunity to present and address various submissions related to penalties, law enforcement, child protection, and public consultation, emphasising the Bill's intention to strike a balance between regulating cannabis use and protecting public health and safety.
The comments surrounding the Cannabis for Private Purposes Bill have been multifaceted, reflecting diverse perspectives and interests. Stakeholders from various sectors, including advocacy groups, businesses, government entities, and civil society organisations, have engaged in dialogue to provide feedback on the proposed legislation.
One recurring theme in the discussions was the acknowledgement of the Prince judgment as a foundational legal precedent that established the right to privacy for adults in the context of cannabis use. The judgment decriminalised the private use, possession, and cultivation of cannabis by adults in their private dwellings, setting the stage for legislative developments in this area.
In response to the proposed Cannabis for Private Purposes Bill, stakeholders have expressed a range of viewpoints, highlighting both support for and concerns about specific provisions within the legislation. Some stakeholders have welcomed the Bill's emphasis on individual rights and personal autonomy, echoing the principles outlined in the Prince judgment. They argued that adults should have the freedom to make decisions about cannabis use within the privacy of their homes without fear of legal repercussions.
However, other stakeholders have raised questions and critiques regarding certain aspects of the Bill. Concerns have been voiced about issues such as law enforcement practices, regulatory oversight, the protection of vulnerable populations, and the potential impact on public health and safety. Additionally, there have been calls for clarity on matters such as cultivation limits, penalties for non-compliance, and the regulation of commercial cannabis activities.
Despite these varying perspectives, there appears to be a shared recognition of the need for comprehensive and balanced legislation that addresses the complexities of cannabis regulation while upholding constitutional principles and human rights standards. Stakeholders have called for robust public engagement, transparency, and accountability in the legislative process to ensure that the final Bill reflects the interests and concerns of all relevant stakeholders.
(see attached for full response)
The Chairperson expressed gratitude to Mr Mokulubete for his comprehensive presentation and acknowledged its length. The Chairperson said Parliament's legal services would address the issues of constitutionality, public comments and tagging. Additionally, the Chairperson invited Mr Mokulubete to provide any further insights or additions concerning the Department's stance on constitutionality and public participation. Members were then encouraged to consider whether they wished to continue deliberations immediately or defer them to the next meeting for further discussion.
Dr Barbara Loots, Parliamentary Legal Advisor, greeted the Chairperson and Committee Members, extending New Year wishes. Acknowledging the comprehensive presentation by the Department, she focused on the tagging issue. Dr Loots emphasised that the Bill's primary purpose was to respond to the Constitutional Court judgment on the decriminalisation of private cannabis use. She clarified that the Bill was not meant to regulate commercialisation, licensing, or environmental cannabis-related issues.
Dr Loots addressed concerns about the Bill's tagging, asserting that it correctly falls under section 75. She highlighted the misunderstanding that led to suggestions for section 76, emphasising that the Bill's focus was on decriminalising cannabis for private use. She pointed out that future legislation might address broader aspects, but the current Bill's scope was limited to private use by adults, as directed by the Constitutional Court. Dr Loots also defended the extensive public consultation process, noting four rounds of submissions in both the Portfolio Committee and the Select Committee.
In conclusion, Dr Loots clarified that the tagging decision should be based on whether there is a substantive impact on a listed item in the schedule triggered by a clause in the Bill. As per her assessment, the Bill stays within the Constitutional Court's parameters, regulating or decriminalising cannabis for private use while focusing on the best interests of the child.
The Chairperson expressed gratitude to Dr Loots for providing clarity on the tagging issue. Recognising the time constraints and the length of the presentation, the Chairperson proposed deferring further deliberation on the Bill to the next meeting. The Chairperson sought Members' indication on the proposal and, not seeing any objections, assumed it was acceptable.
The Chairperson extended thanks to everyone involved, including the Deputy Minister and legal teams from both the Department and Parliament, for their contributions and for addressing public comments on the bills.
The meeting was adjourned.
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