The State Legal Development Department is a law unto itself, its future is in doubt, it’s presenting MPs with incoherent cannabis legislation, and it’s putting Parliament in danger of breaching a second Constitutional Court deadline – this time to fix the Drugs Act. The new Drugs Trafficking Bill exposes one of the most serious flaws of a dysfunctional State – one that is unable to pass laws to give effect to its own policy.

It can’t get much worse than that, can it?

Oh yes, it can!

The new version of the Drugs Act continues to criminalize trade in cannabis!

Government advisors have identified this Act as being the single biggest inhibitor to getting the cannabis economy off the ground as it prevents mainstream financial institutions from participating in the value chain. And yet, nobody appears to have been able to bring senior state law advisor Sarel Robbertse and his colleagues into line – they decided to omit cannabis from the new Bill and then decided to put it back in again, in order to “maintain the status quo”, which is exactly what the President has promised to change.

And oh, the Department of Health, which is meant to be looking after consumer safety, hasn’t bothered since 2014 to make any input to the Department of Justice as to what it believes should be included in the Drugs Act schedules as an illicit substance. And, while we’re about it, the Medicine’s Act may now also be unconstitutional for the same reasons as the Drugs Act, and unless Parliament pulls a rabbit out of the hat, like pronto, it may be legal to sell certain “nouveau” hard drugs on the streets of South Africa by 17 December 2022 when the current Drugs Act lapses. But, of course, there will be no legal “non-licensed” sale in cannabis-related products because their ban pre-dated 1992 when the current Drugs Act was passed into law.

Deputy Justice Minister John Jeffery revealed the full extent of the mess in the DoJ in Parliament on 2 September 2022 when he admitted that he did not appear to have any authority over “the officials” in the legal drafting department, who had ignored his ultimatums to draft laws within Constitutional Court deadlines.

ACDP MP Steve Swart asked Jefferies what he was doing about this. Jefferies replied that he’d put in a complaint to the Director General of Justice.

There was no audible sigh of relief from Committee members.

Instead, MP’s from all parties were coming to terms with the fact that they were being let down by Parliament itself,  and being asked to do the impossible job of rushing through complicated contradictory cannabis legislation. And, and yet again, were facing the embarrassing situation of not being able to meet a Concourt deadline.

And nowhere in the new laws being drafted is there any expression given to the President’s own vision of cannabis being an instrument to increase tax revenue, create more jobs and bring the illegal market into the mainstream.

Let’s be very clear about the impending chaos at hand. Government is about to make a dreadful hash of cannabis reform.

Both the Drugs Act and the Cannabis for Private Purposes Bill (CPPB) continue to criminalize the commercial trade in cannabis, which is completely at odds with one of the key priorities identified by the President’s new cannabis advisor Garth Strachan – fixing the regulatory environment to open up the cannabis economy.

The Government has committed itself to getting rid of prohibitive cannabis laws as a priority, and yet its state lawyers are doing the exact opposite. That’s because they’re taking a narrow legal view of court rulings instead of a broader view that incorporates government policy.

Concourt ordered Parliament to fix constitutional defects in cannabis-related laws, and that’s what senior state legal advisor Sarel Robbertse has tried to do. Nowhere in his brief was there an instruction to come up with one over-arching cannabis law. And even if the state legal department was given such a brief, it will not have the capacity to draft a new cannabis law any time soon.

MP’s learnt at the briefing that a senior state lawyer recently died of Covid and that Robbertse himself had been severely affected by the virus, all of which had slowed down the department’s work rate. DA MP Glynnis Breytenbach said the legal department was in danger of collapse as there was no new blood coming in. “It takes 10 years to train a prosecutor, it takes 20 years to get the experience of being able to draft laws for Parliament” she said at a Portfolio Committee meeting on 24 August 2022. She warned that there was going to be a severe lack of capacity in the near future as several experienced lawmakers were retiring.

The Committee requested Deputy Justice Minister John Jeffery to seek an extension to a Constitutional Court deadline to fix the Drugs and Drug Trafficking Act of 1992, as it was unlikely that it could be passed into law before Parliament rose at the end of November 2022.  Two years ago Concourt gave Parliament until 17 December 2022 to correct the constitutional defects in the Act, but the DoJ has been snoozing on the job.

It has emerged that lawmakers were aware since 2015 that the Drugs Act was constitutionally flawed, a finding confirmed by Concourt in December 2020. However, the DoJ has sat on its hands for six and a half years and has now given the Portfolio Committee on Justice and Correctional Services less than three months to sign into law the Drugs and Drug Trafficking Amendment Bill of 2022 or risk being yet again being in breach of the highest court in the land. The Committee has already missed – by two years – the Concourt deadline for it to pass the Cannabis for Private Purposes Bill!

And even more terrifying is that state lawyers are drafting two contradictory pieces of legislation that they’re asking the National Assembly, Council of Provinces and President to sign off by the end of the year.

The CPPB allows for the future commercial trade in cannabis and related products, but this is specifically disallowed by the new Drugs Bill which classifies cannabis as an “undesirable dependence-producing substance”. Several MP’s have pointed out this absurdity, including the glaring omission from any of the legislation any reference to Government’s own intention of supporting traditional cannabis growers.

And in yet another act that defies comprehension, Robbertse said his team actually removed cannabis and related products from the Drugs Bill schedule, but had decided to put them back in, in order to “maintain the status quo”. It’s not clear who was behind this decision-making. It’s also not clear according to the Justice Department’s website as to where Sarel Robbertse fits in and who he reports to. His name is not mentioned on the official Department website or included in the organogram of the office of the Chief State Law advisor.

The Drugs and Drug Trafficking Act has been identified by all stakeholders as the biggest hurdle to getting the cannabis economy off the ground, and yet state lawmakers making the 2022 amendments to the Act don’t feel beholden unto Government policy, yet again underlying the parlous state of South African law.

The Act was used as the main reason Judge Judy Slinger of the Western Cape High Court  dismissed the application by the Haze Club to legally recognize private cannabis clubs.

It's not all bad news, however. The Private Sector Working Group has been doing Government’s work by drawing up a single cannabis and hemp law that would allow for commercial trade, streamline the licensing procedures and include traditional growers and township entrepreneurs in the value chain. Where this will fit into the current law-making mechanism is unclear, but at least the private sector lawyers have the ear of Strachan, who’s job has just been made all the more difficult by his colleagues in Government.

The one certainty that has emerged from the 2 September 2022 Portfolio Committee meeting is that there is not going to be any imminent change in the cannabis regulatory environment that will satisfy any cannabis industry stakeholders – including the President himself, who risks being undermined by the very people who are paid good money to put the right laws in place.

The State’s legal department has ensured that the only beneficiaries of cannabis reform for the foreseeable future will be those with access to capital and export markets or who have private property where they can grow and consume their own cannabis.

As long as the plant continues to be criminalized, Government’s promise of opening up the cannabis economy for the good of all South Africans remains a cynical gesture.