ATC230912: Interim Report of the Portfolio Committee on Justice and Correctional Services on the Cannabis for Private Purposes Bill [B 19 - 2020] (National Assembly – Sec 75), Dated 12 September 2023

Justice and Correctional Services

Interim Report of the Portfolio Committee on Justice and Correctional Services on the Cannabis for Private Purposes Bill [B 19 - 2020] (National Assembly – Sec 75), Dated 12 September 2023

 

The Portfolio Committee on Justice and Correctional Services (“the Committee”), having considered the Cannabis for Private Purposes Bill [B 19 - 2020] (“the Bill”), referred to it and classified by the Joint Tagging Mechanism (JTM) as a section 75 Bill, reports in the interim as follows:

 

1. In Minister for Justice and Constitutional Development and Others v Prince 2018 (6) SA 393 (CC) (“Prince judgment”), the Constitutional Court declared the following legislative provisions unconstitutional, as they amount to an impermissible limitation of the right to privacy:

 

1. .1 Section 4(b) (possession) and section 5(b) (dealing on the basis of cultivation) of the Drugs and Drugs Trafficking Act 140 of 1992 (the Drugs Act), read with Part III of Schedule 2 of that Act; and

 

1. 2. section 22A(9)(a)(i) of the Medicines and Related Substances Control Act, read with Schedule 7 of Government Notice No. R 509 of 2003.

 

2. The Court suspended the order of invalidity for 24 months for Parliament to correct the constitutional defects by 17 September 2020. The Court provided a reading-in provision that ensures that an adult will not be guilty of a criminal offence if they use, possess, or cultivate cannabis for their personal consumption in private, which continues to apply.

3. On 1 September 2020, the Bill was introduced and referred to the Committee for consideration and report.

4. The Bill was introduced with the intent to address only the Prince judgment, which broadly focussed on considerations relating to the right of privacy as far as the use of cannabis by adults for private purpose. Due to the complexity of the subject matter, the Committee has already facilitated extensive public consultation processes and deliberations with numerous stakeholders.

5. The Bill as tabled and deliberated on by the Committee up until its meeting of 12 September 2023 did not look beyond the adult-centred focus to consider the best interest of children found in possession of cannabis and processed, and as such did not consider cannabis related issues in relation to children within the criminal justice system.

6. Such processing of children within the criminal justice system in relation to cannabis offences was found unconstitutional in in Centre for Child Law v Director of Public Prosecutions, Johannesburg and Others [2022] ZACC 35 (Centre for Child Law judgment):           

6.1 On 29 September 2022, the Constitutional Court, in Centre for Child Law judgment, confirmed the order of the High Court, which declared section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 to be inconsistent with the Constitution and invalid to the extent that it criminalises the use and/or possession of cannabis by a child.

6.2. The Constitutional Court suspended the operation of the order of constitutional invalidity for a period of 24 months for Parliament to finalise the legislative reform process. The date by which the defect must be corrected by Parliament is 28 September 2024.

7. Up until recently, the Committee was working under the impression that—

7.1 The focus of the Prince judgement was the right to privacy and that of the Centre for Child Law judgment was the best interest of the child, and that these two cannabis-related judgments were not to be simultaneously considered for legislative processing purposes due to the differing areas of focus; and

7.2 compliance with the Constitutional Court order in the Centre for Child Law judgment (with the unconstitutionality order being suspended until 29 September 2024) would be in terms of draft legislation (other than the Cannabis for Private Purposes Bill), which draft legislation was expected to be tabled by 30 September 2023.

8. Following recent communications from the Department of Justice and Constitutional Development in response to a National Assembly Programming Committee question regarding legislative compliance with pending Constitutional Court orders, it became apparent that the position had shifted to now regard the Bill currently before the Committee as the legislative vehicle with which to address both the Prince judgment and the Centre for Child Law judgment.

9. Previous deliberations and public submissions called for by the Committee on the Bill have been limited to the Prince judgment context and considerations only. To now accommodate the Centre for Child Law judgment in the Bill, the Committee would need to extend the scope of the Bill as tabled and call for public comment to ensure compliance with all procedural requirements in the processing of the Bill: To comply with the Centre for Child Law judgment the extended focus of the Bill will have to consider the processing of children outside of the criminal justice system by making allowance of alternative social or civil interventions in response to children apprehended for use or possession of cannabis.

10. Therefore, in terms of Rule 286(4)(b) of the National Assembly Rules, the Committee seeks the Assembly’s permission to extend the subject of the Bill to address issues relating to the best interest of the child (in compliance with the Centre for Child Law judgment) in addition to the privacy right protection reflected in the Bill in relation to the private use, possession and cultivation of cannabis by adults in a private space (in compliance with the Prince judgment).

 

Report to be considered.