The Department of Justice took most of the flak in Parliament during the recent discussions on hemp provisions in the Cannabis Bill, when their legal drafting skills were exposed as bereft of constitutional or rational foundation, never mind taking into account the views of the Executive and those who would be affected by the enacted laws.

Now, it’s clearly only a matter of time before the Justice Department’s culpability in introducing unworkable ‘hemp’ clauses into the Plant Improvement Act comes into the firing line as they have sold the Department of Agriculture (DALRRD) a seriously bad piece of legislation, which, sadly for the 300 plus licensed hemp permit holders, has already been passed into law.

State lawyers will inevitably be called to account why yet another law has been passed that undermines Government cannabis policy and compromises the promises made by the President to the South African people. 

Yet thus far, MPs have not had the backbone to call the Department to account as to the shoddy legislation it’s delivered. 

Could this already have happened behind closed doors, as Justice and Correctional Services Portfolio Committee chair, Bulelani Mangwanashe, has been more attuned to practical stakeholder input rather than the Department’s incoherent response as to why an unconstitutional bill is before Parliament in the first place?

In terms of the impact on local farmers, if DALLRD had sat down and deliberated seriously, and with malintent, on how to strangle the South African hemp industry at birth, they could not have come up with a better, more painful solution. 

But it was probably just ineptitude, laziness, a lack of consultation culture - and not thinking the issues through - that have resulted in the problem the cannabis industry now faces in relation to developing a sustainable hemp economy; choked by red tape at its genesis and now complicated by further redundant legislation. 

Presenter after presenter commented during the virtual stakeholder input to Parliament on 23 and 24 May 2023, on the legislative ridiculousness of commercial hemp provisions being inserted in the Cannabis for Private Purposes Bill and the threat to cannabis reform lurking in the Plant Improvement Act.

One of South Africa’s most experienced industrial cannabis farmers, Natie Ferreira, who is creating a “hemp hub” at Bienne Donne in the Western Cape, explained to MPs that from an agronomic perspective, “imported, non-adaptive seeds just fail, and compare miserably to locally adapted seeds. The problem at the moment is that we are forced under the Plant Improvement Act to only import and use certified seeds, that are certified based on cannabinoid levels in overseas conditions which are completely different to our conditions”.

Widely respected as a researcher and farmer in the cannabis industry, Ferreira’s words should carry weight: his underlying message: we need to develop an Afro-centric approach to utilize the many benefits of the plant, in accordance with our local climatic conditions, of which only one use, is that of industrial hemp.

The most objectionable tenants of the Plant Improvement Act, and its consequences, as elucidated by stakeholders, are that:

• THC should not be included in the definition of industrial cannabis: hemp is defined by the State according to a THC limit – currently at 0,2% but the hint is there that it will be raised to 2%;

• This totally ignores South African environmental conditions in which hemp “spikes” occur naturally (hemp veteran Dr Thandeka Kunene suggests that if THC is to be used as a determinant of hemp at all, a more realistic limit would be 6%);

• Whatever the THC levels are set at, farmers who’s crops experience natural THC “spikes” will be criminalized if the limits go beyond what is regulated, which opens the door to arrest and police corruption;

• It allows only prescribed genetics to be used in cultivation and currently all local landraces have been sidelined (the varietals developed by the Agriculture Research Council are believed to be somewhere in the process of being certified, and let us not forget they have been working on hemp research since 1998);

• The consequence of the above is that local farmers will have to rely heavily on imported plant material unsuited to local conditions.

• It limits research into local genetics, and is in fact a barrier to cannabis plant improvement rather than enabling it;

The fact that current hemp provisions limit any cultivation operation to 50 ha, and needs to be fenced as well, threaten the viability of the sector at its sunrise moment and effectively prevent South Africa from becoming a serious exporter of industrial cannabis. 

The unnecessary administrative burden of the hemp permit system is another factor that will inhibit the very legacy farmers Government says it wants to help. The motivators are negligible for Mpondoland cannabis farmers to switch their tried and tested higher-value, higher THC landraces to lower-value, lower THC biomass, based on unproven imports - with a quantum in the hassle factor and misty expressions of support from a distant Government.

Cullinan and Associates lawyer Ricky Stone, speaking in his capacity as a director if the uMzimvubu Farmers Support Network, which provides legal assistance to the legacy farmers of Mpondoland, says: 

“The hemp clause (in the Cannabis Bill) is inconsistent with the provisions in the Plant Improvement Act and those inconsistencies are not satisfactorily dealt with, and they need to be. But I think, what we need to appreciate is that ‘hemp’ is just a word, or a phrase, a type of use of cannabis, be that industrial or other use. Hemp is cannabis, it is dagga, it is insangu, this is one plant, whether you are using it for rope, or for dope, or for whatever else, it’s one plant. It is unfortunate to see these references between cannabis and hemp because it’s reminiscent of apartheid, and here we are seeing a new form of apartheid, which is plant apartheid. So, it’s important to realize that the Amapondo are using cannabis for industrial purposes. Their varieties of cannabis have more than 2% or 0,2% of THC, so Chair, is this Government genuinely saying that the Amapondo must destroy their ancient genetics. They have been the holders of that indigenous knowledge for hundreds of years. Must they now destroy those cultivars in favour of imported hemp varieties from Canada, from China, from France? Chief Diko mentioned how much the hemp industry is going to be worth. In fact, this shirt I’m wearing is made out of cannabis, but unfortunately this cannabis had to be imported from France to South Africa to be made by a South African company. Whereas we have hundreds of thousands of tons of industrial cannabis in Mpondoland right now as I’m speaking to you.”

Paul Michael Keichel of Cullinan and Associates, said that one of the problems around hemp was that “we are always going to find ourselves in difficulty if we try and define one single plant in different categories, with reference to things such as THC. Now I’m going to ask three rhetorical questions:

How do we enforce this against the rural Amapondo who want to grow adult use cannabis and then use the stalks to make hempcrete to builds their private residences?

Are we going to force those rural Amapondo to switch their land race cannabis for imported hemp cultivars if they want to dabble in the commercial hemp space. And what are we going to do about the issue of cross pollination?

Will the rural Amapondo have to destroy their hemp crop and be branded as criminals because of cross pollination from high THC adult use growers a valley or two away across the mountains?

Another rhetorical question that arises from the hemp plug-in (into the Cannabis Bill). How is the State going to differentiate between cannabis cultivation material and hemp cultivation material for purposes of private use.? 

Must civilians confine themselves only to “approved cultivars” and a limit on numbers and THC if they intend to grow a hemp hedge around their property to cultivate themselves sufficient hurd to build a hempcrete kraal for their cattle?

Chief Zwelinkhanylie Diko of Mpondoland, custodian of the customs of the traditional legacy growers of the Port St Johns area who have been growing cannabis for over 150 years, provided a message of rural wisdom to the MPs: keep it simple, classify local landraces as industrial cannabis and you may find a route out of the legal problems that surround this issue.

Gareth Prince of the Cannabis Development Council of SA says environmental considerations haven’t been taken into account in the Plant Improvement Act: “Our environment needs to be protected in an integrated manner and as we have campaigns against alien or invasive plant species, we must prevent the mass and unfettered invasion of foreign cannabis varieties."

He said the Plant Improvement Act was inconsistent with the National Economic Management Act which “required a sustainable, cautious and risk-averse approach when there could be a negative impact on the environment or people’s environmental rights, where they can be anticipated or prevented and if they cannot all be prevented, they can be minimized or remedied.

“The Legislature can meet these demands by engaging in the full spectrum of the indigenous dagga plant and yet it chooses to import foreign cultivars whose impact on local cultivars is not yet known. This is not risk-averse or sustainable. Dagga is our natural resource and is capable of doing anything hemp can do. Its ecological compatibility is already established, whereas that of hemp is not. We have not yet definitively established a sustainability of approved hemp cultivars, yet the Cannabis Bill calls for them to be allowed, while it downplays the abilities of local dagga.”

In summary, the Plant Improvement Act will make its way back to the Legislature for Amendment because it’s a major impediment to getting Government’s industrial cannabis strategy off the ground and creates fundamental barriers for the previously disadvantaged to gain entry into the sector.

And it all could have been avoided if the Justice Department and Parliament could have done their cannabis homework they, as they, the Legislature, are being handsomely paid by taxpayers to do - and if they had listened to the wealth of practical cannabis stakeholder advice and offers of support in the first place!.

Everybody, get used to it: the future is back to Square One of having to continually fix broken things that wouldn’t need fixing if Government had listened in the first place!

The ship of fools sails on.