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Cannabis Bill Resurfaces with Dramatic New Commercial Use Clause That Creates Great Legal Confusion

New clause to “authorize” future legislation to “enable” adult use legalization 

The Cannabis for Private Purposes Bill (CPPB) raised its head in Parliament again with a new clause that opens up the possibility for commercial trade in cannabis. But MP’s argued that the new clause, Secton 3, will also open up a whole new can of worms as it changed the nature of the Bill entirely. And it appears inevitable that public participation in the process is going to have to be re-opened and the Bill redrafted.

Senior State Advocate Sarel Robbertse, who presented the redrafted version to the Justice and Correctional Services Portfolio Committee on 8 March 2022, was also not happy with Section 3. He indicated that he’d been strong-armed by the Department of Trade and Industry to include the clause even though it was “in contravention of our international legal obligations”.

Robbertse said the DTI’s instruction was for the Bill to “authorize” a commercial framework for cannabis and for other national legislation to “enable” commercial trade.  

Robbertse said the new clause indicated that future national legislation may provide for different classes or categories of cannabis and that such legislation “must” encourage BEE, “particularly the Rastafarian and other black communities that may have been prejudiced in the past”.

He said any new legislation “must provide for measures to minimize harm associated with recreational use; it must provide for demand reduction mechanism must provide for population monitoring of the abuse associated with cannabis; must provide for public education; such legislation must limit access to under 18’s, must prohibit advertising of cannabis, and provide a framework for quality testing and oversight mechanisms, regulated packaging and labelling, and regulated purchase as well as  the establishment of a National Cannabis Advisory Committee, which must persist with such measures”.

He said “commercial activities in respect of recreational cannabis are authorized, even though this is in contravention to our international obligations, but that national legislation has to be enacted specifically to allow this”.

 

MP Swart: dramatic change means the public must again be consulted

ACDP MP Steve Swart said Section 3 was a “dramatic change” to the Bill. “This clause at this stage changes the whole framework of the Bill completely from purely regulatory to a commercial model. At this late stage I appreciate this is coming from DTI, but it indicates that only broad-based black empowerment or Rastafarians will be able to legalize themselves. Only those segments of those society will be able to apply for licenses and that is very exclusionary, and would require consultation with the various industries and organizations that have made presentations to this committee.”

Swart said that although the Committee was in charge of regulatory oversight and not creating a commercial framework, it had to take into consideration what implications its policy decisions would have on the market. He said that at the very least there were minor but serious changes that needed to be made, for instance, the Bill could not determine future legislation by using the word “must” which should be replaced by “may”. He said “we must be very careful. In effect we are giving commercial guidelines and there must be a ‘conflict of laws’ clause”.

The DA’s MP Werner Horn agreed: “this is more than a clause that would enable other departments; this effectively creates an interim framework for the commercialization of the cannabis industry. Then if we take into account the time it takes to pass new legislation, the interim period could stretch for years on end. We should be very careful about including this, especially in the absence of public participation. We will fall foul of not having subjected a material part of the Bill to public participation, In different provinces there are different entitites already dealing with this – it may required that consultation should also happen at a provincial level.

Horn also pointed out that Robbertse was making a flawed assumption that Rastas were all automatically black and could therefore in future qualify for licenses under BEE dispensations.  He also made the point that although skills transfer was commendable it did not go far enough in protecting traditional growers.

He said “one of major critiera should be those who have built up the specialized knowledge and skills over the years should be in the inside lane to take advantage of commercial opportunities and they should not be put at the mercy of established commercial role players in this country”.

Committee chairman Bulelani “Gratitude” Magwanashe wrapped up the meeting saying further legal opinion was needed as to how the Committee should proceed and whether the public consultation process should be re-opened. 

In summary, the new clause is well-intentioned in terms of trying to align the Cannabis Bill with the National Cannabis Master Plan – particularly in the State’s indication that a new definition of hemp as being cannabis with a THC percentage of up to 1% instead of the previously gazette 0,2%.  The Bill is clearly being massaged so that it does not restrict commercial trade in hemp while a new over-arching cannabis law is drawn up that may allow for legal adult-use legal consumption in a regulated market. However, as MP’s pointed out, Clause 3 is a game-changer, and that it would be legislatively dangerous to proceed without calling for more input from stakeholders.

One Response

  1. Public participation from thise already working in this sector is a must and not just the licensed facilities or the ones that can afford the $$ invites or handshakes – all sectors.

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