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Gauteng Govt vs Justice Department: ‘Drugs Act is Blocking State’s Own Policy to Drive Cannabis Industrialization and Job Creation’

You gotta love it!  While the Gauteng government was signalling its intention to bring illegal growers and township dealers into the new cannabis economy, Bongumsa was already doing it. He cheekily advertised his “Swazi Gold black market” on the Gauteng Government webinar on investment in the cannabis industry on 22 September 2021, shamelessly posting his cell number for anyone wanting to buy illegal weed. Talk about guerilla marketing!

 

Gauteng Govt and drug dealers: an unlikely alliance against Drugs Trafficking Act

Bongumsa and the Gauteng government are actually united in their opposition to the Drugs and Drug Trafficking Act of 1995. It would send Bongumsa to jail and it’s preventing the province from implementing its ambitious cannabis industrialization programme. In fact Bongumsa could not only become legal under Gauteng’s cannabis plans, but he could qualify for a grant if he was growing his own Swazi gold to sell.

It’s all about the legal definition of a narcotic, which at this stage says the whole plant, including low-THC hemp, is a drug – and the trade there-in is prohibited and punishable.

Until this Act is amended, no cannabis economic development can proceed.  

The Act has been found to be unconstitutional by the South Gauteng High Court and yet it is still being used to prosecute cannabis users, particularly dagga dealers from poorer communities. There is a backlog of over 300 cannabis cases in the court queue because of uncertainty over the legal status of cannabis since the historic 2018 Constitutional Court ruling decriminalizing personal possession.

 

No cohesion in government around cannabis

The lack of co-ordination among government departments is the primary reason behind the legislative crisis the cannabis industry is descending into. 

In a Cannabis Trade Association Webinar on the issue on 21 September 2021, the following elements of the crisis were identified:

  • Parliament has missed its two-year Constitutional Court deadline by a year and its response to the judgement which found the private consumption of cannabis is legal, has been proved to be unconstitutional!  
  • The Cannabis for Private Purposes Bill was thoroughly rejected by all major cannabis stakeholders, including the provincial governments of Gauteng and the Eastern Cape;
  • The Justice Department will have to draft an entirely new piece of legislation and the principles of the Bill were found to be unconstitutional and out of line with the National Cannabis Master Plan (NCMP);
  • Three years after the Concourt ruled that Parliament must draft new laws around cannabis, there is no legal framework in place;
  • Until such time as there is a new law, all economic activity around cannabis with the exception of licensed exports and use of CBD supplements, is prohibited;
  • The impasse between government departments, specifically the Department of Agriculture (DALRRD) against the Department of Justice, has resulted in policy paralysis;
  • Unless this stand-off is resolved in the next two weeks, DALRRD will not be able to start the hemp permit application it promised would be introduced on 1 October 2021;
  • The legislative crisis is also a regulatory one with SAHPRA being taken to court on cannabis scheduling restrictions, which the CTAA says are unscientific and arbitrary;
  • The State also appears to be dragging its feet in clarifying the status of private cannabis clubs – The Haze Club (THC) director is being prosecuted under the Drugs Act but claims his operation was in line with the constitution. Lawyers have been trying since February this year to get a Cape High Court date in a bid to get PCC’s legally recognized once and for all, but have not yet been able to secure a slot because of slow responses by state lawyers;

 

Justice Dept is the main culprit holding up cannabis reform

The Justice Department has been notably absent in all the NCMP debates, and in fact the last public cannabis webinar it was involved in was a Social Welfare Department discussion on addiction. State Law advisor Sarel Robbertze said legalization would lead to bigger problems, and even though he believes cannabis is a gateway drug, even he thought the Cannabis for Private Purposes Bill was badly written!

During parliamentary submissions on the Bill earlier this month, Andre du Plessis of the Cannabis Action Group (CAG) said Parliament had to take responsibility for the explosion in illegal cannabis consumption and trade because it had failed its constitutional obligation.

As one cannabis stakeholder pointed out: “Who stands to benefit from the longer cannabis legalization is delayed? Criminal organizations, obviously. One wonders why the state is not vested in taking faster action in clearing the way for legalization, because it would free up resources and release minor offenders from jail. Unless of course, there are officials pocketing money from organized crime and are benefitting from the status quo”.

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