State given two months to rectify constitutional defects

Senior State Law Advisor Sarel Robbertse asked for 10 days to rectify the constitutionally defective Cannabis for Private Purposes Bill (CPPB). Instead, Parliament’s Justice and Correctional Services Portfolio Committee gave him two and a half months – effectively sending the Bill back to the drawing board.

It will be considered again only after the Parliamentary recess when the Committee meets in August 2022. MP’s will then go through the Bill clause by clause before it heads for the National Council of Provinces, where there will be further opportunity for public input at a provincial level. The Bill has already gone through three severe amendments, which critics have said have made it even more constitutionally defective. The fourth amendment will have to address these concerns if cannabis legislation is not to end up in court before it is enacted.

The Committee met on 31 May 2021 to hear reaction from state lawmakers to the scathing criticism unleashed on the Bill in the last round of public hearings, which closed on 24 May 2022. It became apparent during Robbertse’s presentation that the Bill would still fail constitutional muster if it was passed in its current form, particularly around the law of general application.

Robbertse drew flak from Committee chair Bulelani Mgwanashe for not being cohesive in his responses to the input from private sector stakeholders and was given time to get his notes in order. DA MP Glynnis Breytenbach lent her support to Robbertse saying the Committee should be aware that he was recovering from a health issue. 

MP Prof Themba Msimang asked Robbertse what the way forward was given that the Bill had “been rejected”.  Mgwanashi corrected him, saying several private stakeholders had rejected the Bill, but the Committee had not. Robbertse confirmed he was “not withdrawing” the Bill and that it was in the Parliamentary process and that concerns with the draft legislation would be addressed.

The Bill is all about the Prince Judgement, no more than that

He acknowledged that “there may be discrimination against people who don’t have access to private property and that may be a constitutional issue, but this Bill is about interpreting the Prince Judgement”.

Robbertse persisted in his argument that the commercial trade in cannabis, the rights of traditional growers and healers and the whole issue of medical cannabis fell outside the remit of the CPPB. He said the Bill’s intention was soley to give force to the Prince Judgement – the 2018 Constitutional Court ruling that found that private consumption of cannabis by an adult was not against the law.

“There’s no need to apologize for the narrow-based interpretation that authorizes a substance to an extent and regulates it further.”

He said the Bill provided exemptions for religious and cultural organizations, and this was not limited to the Ras Tafari. He said organizations would have to motivate to the Minister as to why they should be exempt, and it would be up to organization representatives to work out a relationship with the SAPS that provided for “site visits” to reduce unnecessary paperwork.

Robbertse emphasized that the continued criminalization of the plant was justified as sanctions were necessary to ensure compliance and reduce harm.

When asked by DA Werner Horn whether the Bill actually decriminalized cannabis, Robbertse answered: “The Constitutional Court rightly decriminalized cannabis for adult use in private, but criminalization must be seen in respect of the limitations”.

Robbertse: Justice is not the right department to regulate cannabis

He said the Department of Justice was not the right regulatory authority for the cannabis industry, which is why the Bill allowed for future legislation to create a commercial framework and set out guidelines that this could be based on.

Robbertse said he was “happy with the decriminalization of small-scale use” and the Bill provided for expungement of certain cannabis “crimes”, but that “other departments are in a better position to regulate and enforce” cannabis further.

He said other legislation was required for:

• Driving under the influence of THC;

• The rights of traditional growers and healers;

• Private Cannabis Clubs

• The purchase of medical cannabis

• The purchase of seeds

The THC debate

He said Justice was treating cannabis broadly in the same way as alcohol and tobacco, which were also regulated in different ways.

“The only real issue is what is the harmlessness of cannabis. It’s difficult to determine at this stage. It must at least be considered to have the same harm potential as alcohol, although some people don’t think so, but it is a psychoactive substance”.   He conceded that the envisaged penalties for cannabis transgression were much harsher than for alcohol and tobacco but said the State was open to “discuss the proportionality of penalties”.

The Bill defines cannabis as having a THC level of above 2%, a radical spike from the original 0,2%. Robbertse was quick to point out that this had nothing to do with hemp definitions, and that hemp fell completely outside of the Bill’s remit. Currently hemp permits issued by the Department of Agriculture (DALRRD) define hemp as having less than 0,2% THC.

He said he believed cannabis was psychoactive at THC levels of above 5%, and in his view, South African landraces had a THC potency of between three and seven percent. MP’s wanted more information about the significance of THC and what the right thresholds would be and Robbertse undertook to get more clarity from “the subject experts”.