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Cyril, Lawfare and Other Pointers for the SA Cannabis Industry in 2022

By Brett Hilton-Barber, founder Cannabiz Africa

 

2022 may be something of a make-or-break year for the South African legal cannabis industry, which is, to put it mildly, going into the new year in a state of disarray. Cannabis consultant Sibusiso Xaba believes there may be between R500 million and R1,5 billion in investment waiting in the wings for SA’s regulators to provide the suitable environment for the cannabis economy to take off.  That’s a lot of money for the taking and a huge incentive for policymakers to pull themselves together. However, given the country’s track record in policy implementation, 2022 could well end up being more dud than bud for the cannabis industry. 

 

Cyril will get involved to try and fix the mess

The Presidency is likely to step into the cannabis space during 2022 to try and resolve the regulatory nightmare that’s holding back the cannabis economy. Right now, there are three government departments responsible for enforcing cannabis compliance – Agriculture, Health and Justice – and they’re not all speaking off the same script. It’s likely that in the next six months President Cyril Ramaphosa will appoint a “Cannabis Tzar” to bring conflicting legislation into line. The chances of this happening are all the greater because a central co-ordinating cannabis regulatory authority is what the United Nations expects of countries going the legalization route.

 

Lawfare to continue in the cannabis trenches

The craziness of this country is exemplified by the fact that non-government organizations are having to take government to court to force it to implement its own policies!  There are several cannabis cases smouldering in the air that will take up good court time in 2022 unless there are executive orders clarifying the legal grey areas.  The following courtroom battles are looming:

  • The Cannabis for Private Purposes Bill will be challenged the moment it is made law as it is, even in its revised format, fundamentally unconstitutional;
  •  The Cannabis Trade Association is taking on the Department of Health and SAHPRA over THC and CBD restrictions in cannabis products;
  • The Haze Club (THC) has been trying to get a High Court declaratory order legalizing private cannabis clubs for over a year – it’s now hoping for a February 2022 court date and its lawyers have accused the state of deliberately dragging their feet on the issue;
  • There are over 300 cannabis cases that are on hold pending clarity over the “Trial of the Plant” and, astonishingly enough, the “Dagga Couple” case is still on the court roll, even though that case was partially responsible for the Constitutional Court ruling decriminalizing cannabis!
  • Several Rastafarian communities have engaged with the Independent Police Directorate, alleging systematic police brutality and harassment, and in one case in the Free State, a charge of police murder;
  • There is the potential for South Africa’s pioneer hemp farmers to be arrested or harassed by police because although government has gazette hemp as an agricultural product it is still defined by law as a narcotic;

 

Clampdown coming on illegal or mislabelled products

The cannabis wellness and medicinal markets occupy a grey legal zone. The SAHPRA-imposed restrictions on THC and CBD levels are generally being ignored as they are under legal challenge. Commentators believe most CBD products on sale are technically illegal despite the benefits they may offer. Many too are poorly labelled or do not list the composition of the contents. SAHPRA has been flooded with complaints, including that of high THC beverages being sold at a sweet shop at Waterfall City in Midrand. It’s only a matter of time before a SAHPRA-instigated clampdown on CBD products is unleashed.

 

Fierce debate on hemp THC limits before the inevitable increase to 1%

The Department of Agriculture (DALRDD) has opened the hemp permit application process but has specified that hemp is classified as cannabis with a THC level of 0,2% or less. This is despite evidence from the CSIR that South Africa’s climate and latitude push up THC levels naturally and that it will be near impossible to achieve consistency in product.  Malawi and Mexico have set their THC limits at 1% which would be a more realistic scenario for South Africa.  The debate will rage until such time as practicality reigns, and for the sake of the fledgling hemp industry, we hope it will be this year.

 

South Africans will consume more cannabis no matter what the law does

There are an estimated 3,5 million cannabis consumers in South Africa (according to the Department of Health) and the number will increase as legalization stumbles into being. In all major towns, cannabis is being sold openly and illegally through brick-and-mortar establishments, while illegal door to door deliveries are believed to be rocketing. There has been a flood of foreign CBD products on South Africa’s shelves and more CBD shops are opening, despite the sale of many such products being against the law. CBD products are also now available through major supermarkets and the gradual destigmatization of the plant will see a significant increase in cannabis consumption. The effect of the upcoming cannabis clinical trials involving over 1 000 patients will also have a word-of-mouth marketing effect in bringing cannabis into the mainstream. Should there be full adult-use legalization, cannabis consumption will skyrocket.

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