Submission by Paul Michael Keichel of Cullinan and Associates to the Parliamentary Portfolio Committee on Justice and Correctional Services on 23 May 2023.

There seems to be an enduring confusion in that the Constitutional Court did not mandate Parliament to implement full legalization, so that to the extent the Bill does go beyond personal and private cultivation and use of cannabis, this is clearly Parliament’s prerogative, and I suspect this is an attempt to meet what President Cyril Ramaphosa promised in his last two State of the Nation addresses.

Everything I say here is with the greatest of respect and I hope I’m not accused later of overstepping any boundaries.

With respect, it has been artificial to confine comments today to the Portfolio Committee to hemp plug-in sections of the Bill. The question throughout will always be begged, is the foundation that this is built on, the foundation being the rest of the Bill.

Now I say this because Section 36 of the Constitution, the supreme law of the Republic, requires that the State, not civil society, has to justify limitations, and this is with reference to the purpose of such limitations, whether that purpose is achieved, and ultimately whether there are less restrictive means to achieve that same purpose. There certainly are less restrictive means as recognized in the National Drug Master Plan of 2019 to 2024 that recognizes that health and social services ought to intervene to minimize the harms of drugs and this ought not to remain a concern of the criminal justice system unless in the most extreme of circumstances.

Having said that we can see that the references to commercial health cultivation and cultural use seem to be capitulations by the Honourable Committee, but they are unprecedented statements of intention that have no place in legislation. If we do not get it right this will be tied up in court for many years to come and that would achieve the opposite of what Cosatu wants – to set up a regulatory framework that enables the trade of cannabis.

We have to ask ourselves, why not use the opportunity to get this right now, with specific references to Section 1 of the Constitution which says we should be promoting human rights and freedoms and not rushing to limit them.

The only rush is for SAPS to cease arresting people for what are already no longer crimes in terms of the judgement of the Constitutional Court. If there was an order by the executive or a memorandum that went out to SAPS we could achieve more and give everybody the breathing space to get this right this time around.

Having said that I will confine myself to the hemp plug-in because as a lawyer I remain a creature of instruction. I will just make a comment on what was discussed at the beginning, that Doctors for Life, an organization that is self-proclaimed to be quite conservative. They got in the way during the Constitutional Court case in 2017 and the perception now amongst many members of civil society, is that they’re doing so again. That said, I’ll just plug in a caution here that their comments need to be entirely disregarded to the extent that there are any attempts to claw back on any relaxations on the rights already granted to us by the Constitutional Court. It does not seem like they have any respect for foundational law as in Sections 1,2 and 36 of our Constitution.

Over to hemp..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. 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.

In summary, with respect, this Bill is disjointed, it’s unconstitutional and it will inevitably prove unenforceable.

I don’t think we are going to achieve anything by fixing it piecemeal. With respect I think we should start again with this Bill, and I qualify that by saying that unless we go back to the confines of what the Constitutional Court judgment wanted of us, which was to limit this Bill to the personal, private cultivation and use of cannabis

Thank you.

When asked about the role of SAPS, Kiechel replied:

The SAPS issue is multi-layered but let’s approach it on two prongs:

The Constitutional Court declared in 2018 that to personally and privately cultivate, possess and consume cannabis was no longer a crime in SA. And there are rogue members of SAPS who continue to arrest members of civil society on a daily basis and subject them to trauma in their lives, shake them down for bribes. The information is there.

The second element comes down to plant counting. At present nobody purports to have the authority to come into your house and count the number of bottles of whiskey in your cellar or the number of cartons of tobacco you may have stored for your personal and private use. That is because it would be an unconstitutional invasion of your privacy. How can a police officer come onto your property and count your plants in the absence of an arrest warrant, or warrant to search.

But it’s a little more fundamental than that, because if you are treating cases it has to be about matching’ like with like’. If you are going to put restrictions on limits of plants, you’ve got to be very clear about what harms you are preventing. Because you may inadvertently be creating more harm than you are preventing, for example having your door kicked down and your house searched by SAPS. 

Ultimately, it’s a matter of degree and equality. If you don’t have these restrictions on users of alcohol and tobacco, then you shouldn’t have them on users of cannabis.

#