The basic problem is that people in charge of making cannabis laws have been harbouring the illusion that cannabis and hemp are two different plants. This became painfully evident during two days of cannabis hearings by the Portfolio Committee on Justice and Correctional Services on 23 and 24 May, 2023. 

There was a refreshing unanimity amongst non-Government stakeholders of a common understanding of the cannabis plant and how the key to exploring its potential lay in a holistic approach. Presenter after presenter emphasized that cannabis and hemp were the same plant and that the debate around THC was a smokescreen. Watching on the virtual platform one got the feeling that officialdom was starting to get it

It is also evident that up to date, the Department of Justice’ lawmakers have been lazy and inept. It became palpably clear during the hearings of how much of proposed cannabis legislation is a cut and paste operation, unfortunately relying, it would appear, mainly on the first page of Google Search, and ignoring previous public submissions.

Nick Heinemann of AfriStar and social anthropologist Etienne van Zyl made potentially shape-shifting presentations based on how state lawmakers could use terminology to their advantage. 

They pointed out that there are no international legal restrictions on the cultivation and use of industrial hemp and this could work to South Africa’s advantage and streamline legalization. If ‘hemp’ was legally described as ‘industrial cannabis, South Africa would not be obliged to report plantings to any international compliance agency – these would be confined to seizures of illegal cannabis and medical export.

At the end of the day, it’s a matter of THC management. High THC cannabis can also have industrial uses, and as Heinamann pointed out, different parts of the same botanical species have different uses and legislation should facilitate this, not be an impediment. 

Cannabis Action Group’s Andre de Villiers, who’s been organizing the Cape Town annual protest march on Parliament for the last 25 years, wondered whether the Justice Department was dipping into “quantum physics”.

“From a scientific basis, how can you have one molecule that has three different legal definitions, one of which has the potential to send you to jail?” he asked of state law advisor Moku Makabela. Makabela deflected the question, saying the Department’s brief was to enact the Concourt ruling of 2018 within the prescription of new and existing legislation.

The common threads amongst stakeholders were:

• Remove ‘hemp’ from the Bill altogether,

• Change the terminology in future legislation from “hemp” to “industrial cannabis”;

• Remove THC restrictions from the debate – it doesn’t affect the industrial use of parts of the plant;

• Develop local cultivars for industrial cannabis use and not set the industry up on import-reliance;

• Be wary of the environmental and economic impact that may arise from forcing farmers to import non-African cultivars

• Don’t force farmers to be license-holders; the responsible party should be the processor;

• Drop the limitation on hectares to be planted (currently a maximum of 50 Ha)

• Scrap the fencing provisions that permit-holders are obliged to pay for;

• Provide more agricultural and financial support for legacy growers;

Although the inputs were supposed to be restricted to the hemp amendments, the linkage of clauses opened up pathways to broader debates. 

The home-grow limitation of four plants per person did not make sense if one wanted to make CBD oil out of industrial cannabis, said Ilse Ferreira of Qure analytics. 

She also pointed out that, because of the THC spikes South Africa experiences, farmers would only know after their harvest whether they had grown “cannabis” or “hemp” (currently defined as such with a THC limit of 0,2%, but Justice has indicated it’s happy to go up to 2%). 

Ras Stephen Khunou of the Marijuana Board of South Africa told MP’s “On the issue of hemp we have a serious challenge because Government doesn’t know what THC levels there should be”. He emphasized that cannabis was one plant, and that argued that landraces should be incorporated into the definition of “hemp” and that if there was a THC limit it should accommodate local cultivars and be set around 8%. 

He said he backed the Rastafari National Council’s proposal of 5%, but said that a better way would be to classify local low-THC landraces as industrial cannabis. “Let me say, chair, there is no difference between cannabis and hemp; it’s just a political statement, a legislative statement. This is one big plant and we must stop separating and dividing it”.

House of Hemp’s Thandeka Kunene said a 5% THC limit for industrial hemp would be right for South African conditions, but pointed out that THC levels varied between male and female plants and that a female plant could have 20% THC, while the male plant would only have 5%. This needed to be taken into account in “hemp” legislation, she said.

One solution offered to the Committee by hemp veteran Natie Ferreira was to amend existing legislation to include cannabis according to its end use, rather than the piecemeal approach taken in the Bill.

“There is one plant that can be used in a variety of ways and cannabis legislation should reflect this. Industrial cannabis grown for food and beverages should be governed by that legislation, cannabis grown for hempcrete should fall under building regulations etc, and that the laws then governing personal use, would be much simpler to draw up”.

He said local research had “highlighted the complex nature of the plant and the practical implications of tracking cannabinoid content throughout the growth cycle of the plant” and that he’d taken extensive research on the difference between local and imported genetics and that the results were “amazing” in how resilient local cultivars were to local conditions. He said local landraces had adapted to the South African climate over hundreds of years and should be used as the basis for developing a domestic cannabis industry.

“We also identified a variety of desired traits in African landrace cannabis, varieties that compare with some of the best hemp landraces in the world, and I can personally vouch for that” said Ferreira. His view was that industrial cannabis had no place in the Bill and it should be classified as an agricultural product. “We need an Afro-centric approach to formally introduce these genetics into the system”.

Ricky Stone, director of the uMzimvubu Farmers Support Network welcomed the hemp provisions in the Bill but said they were misaligned, and had the Committee taken note of uMzimvubu’s previous submissions, “hemp” would not be in the Bill at all. The purpose of the Bill was to regulate private use of cannabis and not the commercialization of low THC cannabis.

Stone said it would have been appropriate if the State had attached a briefing note to the latest version of the Bill explaining “what the intention of the Legislature was to include these hemp provisions”.

“The intention of the legislature is critical, when drafting it and interpreting it when it is enacted”. 

He said it was clear to him, having gone through the minutes of the Committee’s meeting on 23 December 2022, “there is much uncertainty amongst these Committee members as to why these hemp provisions have been included in a cannabis for private purposes bill. Members were specifically asking whether there as redundancy and unnecessary reference to hemp…members also wanted to understand what the linkage between the Bill and the Plant Improvement Act was.”

“With respect Chair,” said Stone, “These additions on hemp seem to be a cure-all, to try and cure the defects in the Plant Improvement Act, and on that basis, we will submit that they are entirely inappropriate”.

The Plant Improvement Act is highly restrictive for the fledgling hemp sector with an over-reliance on imported genetics and creating high barrier costs to entry for small-scale farmers.

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