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Hope Behind Closed Doors: Top Cannabis Legal Minds Now Involved in Drafting a New Law that Will Allow for Commercial Trade in Cannabis and Scrap Excessive Red Tape

Webber Wentzel policy document has become the main navigational instrument

Private sector lawyers have taken the lead in formulating new cannabis legislation that will allow for regulated commercial trade of the whole plant.  

A policy document prepared by leading law firm Webber Wentzel (WW) is being discussed by the Private Sector Working Group (PSWG) of the National Cannabis Master Plan (NCMP) as a possible alternative to the Cannabis for Private Purposes Bill (CPPB) – or at least one that follows it into law as soon as possible. It envisages a complete overhaul of the current licensing system with the cultivation of cannabis not requiring a license per se, but only in certain cases, such as processing, retailing, import and export.  

Cannabiz Africa sources say that Government is relying on non-government lawyers to help draft new legislation as state lawyers are struggling with the complexity of cannabis and the CPPB (championed by the Department of Justice) is at odds with the NCMP (drafted by the Department of Agriculture but in the process of being taken over by the Presidency)

The million-dollar question is whether the legislation envisaged in the WW document will be rolled into, or replace the CPPB, which is being redrafted after the last period of public comment which closed on 13 May 2022. The CPPB is due to go before the National Council of Provinces to be passed into law in the next few months.

The WW document, “Conceptualisation, Motivation and Key Provisions for an Enabling Regulatory Framework for Cannabis” recommends that a single new cannabis law be drawn up rather than existing legislation be amended.

It asks: “Are we choosing a social development approach or a criminal approach” to cannabis reform? And then answers: the “Masterplan is better served by a non-penal approach”. 

One new over-arching cannabis law needed to prevent industry fragmentation and lawfare

 The document says an over-arching new law is the “preferred mechanism for regulation as it is more likely to result in conceptual coherency and a unified approach to cannabis regulation. It is important to avoid fragmentation of the industry”. 

The WW document was originally commissioned by the Eastern Cape Rural Development Agency (ECRDA) and developed with a volunteer steering committee consisting of top legal minds in the cannabis industry, including Gareth Prince, Paul-Michael Keichel, Andrew Lawrie, Tarryn Vos and Kenzi Riboulet-Zemouli. The WW team is made up of Rodney Africa, Mirren Sharp, Adriano Esterhuizen and Ricky Stone, while the ECRDA is represented by Nokophiwa Mbandezi and Nicholas Heinamann.

Their policy brief was to develop a “pro-poor tool for regeneration of the rural economy” and to “formalize the existing market”. It also took into account how to bring existing growers into the value chain and maximize their competitive advantage.

WW also wanted to “negate the necessity for further court challenges on the constitutionality of the legal frameworks (dagga is already legal by virtue of the constitutional court ruling – need to allow reasonable trade to facilitate those without access to private land for cultivation)” 

‘No license required to grow cannabis but reporting the crop will be mandatory’

The WW document takes a fundamentally different approach to cannabis law from the existing CPPB, but the two both make provision for the establishment an independent Central Cannabis Authority (ICA) to regulate the industry and issue required permits and licenses. The WW envisages the creation of a Cannabis Advisory Committee and a Cannabis Dispute Resolution Board.

It says that although a license to grow cannabis won’t be required per se, growers will be required to report their crops “in order to maintain compliance with international drug control conventions”. 

Instead of placing the regulatory burden of cannabis cultivation on the farmer, it “is more practically placed elsewhere, such as on the manufacturing, processing and retail legs of the supply chain”. 

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