Gareth Prince, chair Cannabis Development Council South Africa
Cannabis Development Council of South Africa chairperson, Gareth Prince, will forever be synonymous with the legalization of cannabis in SA. It was his case that eventually found its way to the Constitutional Court in 2018 and led to the historic ruling legalizing the personal cultivation and consumption of the plant in a private space. As the man who triggered it all, this is his presentation on the Cannabis for Private Purposes Bill to the Parliamentary Committee on Justice and Correctional Services on 24 May 2023.
Read his wisdom.
Committee Chair: You may begin:
Can I state for the record, that I was very heartened when this Portfolio Committee went in to bat for the South African public in relation to the Thabo Bester escape saga and hauled the Minister of Justice, the Minister for Police, the Judge Inspector for Correctional Services and the National Commissioner for Correctional Services before this Committee and to Parliament to answer.
And it made me wonder why the Committee has not chosen to exercise that power to what is happening to this Bill?
Because as we’ve heard, we’ve had several members of our community die, we’ve had hundreds of thousands of members arrested since the 2018 judgement and we are nowhere near finalizing this Bill, and perhaps, one would implore this Commission to consider, whether, why, it is not calling these executives to Parliament to answer why it’s taken nearly five years for us to complete this Bill?
The Bill’s continued insistence to separate dagga and hemp and to define and link commercial hemp activity to a concentration of THC, remains problematic, primarily because it does not honour our constitutional rights, and therefore endangers the constitutionality of the Bill.
It opens the amendments up to charges of being procedurally, as well as substantively, defective. More importantly, in our view, the amendments do not respect, protect, promote or advance the interests of the larger dagga community in South Africa, especially the previously disadvantaged, and therefore cannot be supported by the cannabis community.
In respect of the procedural defects, there has been no public input in the drafting of the amendments. Violations of the proposed amendments could lead to fines of thousands of rands or imprisonment of six months, in terms of Section 13.2 of the revised Bill. This is a serious matter and it could be life-threatening to so many citizens in so many ways.
It is certainly something that we, the cannabis community, have an interest in. The failure to consult with us meaningfully about these amendments and the impact on the people, is in our view, fatal to the legality of the amendments. Simply giving us a month, or six weeks, to comment on these decisions that have already been taken, is not adequate.
Publishing the Bill in English only and relying on mostly electronic invites, unduly limits the reach of the Bill and effectively excludes thousands, if not millions of people. People have a right to have a say in the making of new laws. Our law boldly protects our rights as a participatory democracy. Our citizens have the rights, and the duty, to participate in the making of laws, especially those that could imprison or financially ruin them.
Our Apex court said the more discreet and identifiable the potentially affected section of the population, the more intense the attention on their possible interest, the more reasonable it would be, for the legislature to be astute to ensure that the potentially affected section of the population is given a reasonable opportunity to have a say.
The proposed amendments of limits to hemp cultivation and THC levels is obviously one of great significance to the dagga community. Government’s decision to artificially separate the dagga plant is certainly one that the dagga community would have liked to have input on, but Parliament neglected to hold any public hearings, or to hold any workshops or public information campaigns on dagga or hemp. We certainly have not been afforded a reasonable or meaningful opportunity to raise our views.
Even if Parliament’s conduct is evaluated against the lower standard of rationality, their conduct could still not be labelled as astute. In our view, they fall dismally short of the requirements stated in Parliament’s own public participation model.
And, perhaps, on that point, the public participation model obliges Parliament to first consult the people, engage the people and then give feedback to the people. And whereas this model was adopted in 2019, we’ve seen that, when it come to the issue of cannabis, Parliament refused to follow their own model and did very little informing, educating or consulting the cannabis community.
In our view there has been very little consideration for NEMA, the National Environmental Management Act, and the right of the environment.
Our environment needs to be protected in an integrated manner and as we have campaigns against alien or invasive plant species, we must prevent the mass and unfettered invasion of foreign cannabis varieties.
It must form part of the oversight duty of Parliament to protect our dagga strains. There is nothing that prevents dagga from becoming another “champagne”, and France would not allow just any brand of grapes to be planted in the region of Champagne. South Africa has a very valuable dagga brand and it’s important that the Government protects this, and it’s the Government we want to go and bat for the previously disadvantaged and vulnerable cannabis community when it comes to protecting the intellectual property around our indigenous landrace strains, yet it chooses to accommodate and import foreign cultivars whose impact on our local varieties has not yet been determined.
This is not a risk averse approach, it’s a reckless one.
Section 2.4 (a) of NEMA requires a sustainable, cautious and risk-averse approach when there could be a negative impact on the environment or people’s environmental rights, where they can be anticipated or prevented and if they cannot all be prevented, they can be minimized or remedied.
The Legislature can meet these demands by engaging in the full spectrum of the indigenous dagga plant and yet it chooses to import foreign cultivars whose impact on local cultivars is not yet known. This is not risk-averse or sustainable.
NEMA stipulates that the environment is central to social and economic development. Dagga is our natural resource and is capable of doing anything hemp can do. It’s ecological compatibility is already established, whereas that of hemp is not. We have not yet definitively established a sustainability of approved hemp cultivars, yet the Bill calls for them to be allowed, while it downplays the abilities of local dagga. Justifiable economic development requires that barriers to entry be minimized, whereas in our view, the latest amendments maintain and increase barriers to entering the industry.
Section 2.4 (b) of NEMA states: Environmental management must be integrated, acknowledging that all elements of the environment are linked and interrelated and must take into account the effects of decisions on all aspects of the environment and all people in the environment by pursuing the selection of the best practical environment option.
Working with commercial dagga rather than commercial hemp, allows the State to have an integrated, environmentally-sustainable, and interrelated cannabis policy.
The failure on the part of the Department of Justice to call for environmental impact assessments on how far the impact of foreign cultivars would have on local landrace strains is culpable, and shows the perfunctory manner in which the State has treated the issue of commercial hemp.
There has been no compliance, in our view, of Section 7.2 of Act 106 of 1996 of the Constitution of South Africa
Committee chair: You are left with two minutes
The Section obliges all Government functionaries to respect, protect, promote and advance the rights of South Africans. Legislation must also abide by this obligation and the amendments are suspect in this regard. The Constitution also obliges Government to develop laws that are ‘interdependent, interconnected and interrelated’ and the proposed amendments, with respect, are anything but ‘interdependent, interconnected and interrelated’.
The definition of commercial hemp activity, as well as the “concentration of THC’ does not respect, protect, promote and advance the rights of the South African dagga community. In fact, it continues to downpress our rights and exclude us from the benefits of the industry.
The financial nature of the licensing system excludes the majority of our people and is a formidable barrier to entry and benefits. As far as THC limits are concerned, the 0,2% is arbitrary and artificial. It is not scientific and most definitely is not promoted or endorsed by the cannabis community because it automatically rules out working with our indigenous landrace dagga.
Finally, I want to speak on the regulatory powers of the Minister of Justice. In our view, the proposed powers the Bill intends to give to the Minister is ultra virus. The proposals attempted to confer on the Minister broad regulatory powers which amount to the power to amend the schedules - or the main body of the Act - and as the schedules are an essential part of the Act, it essentially delegates the original power to amend an Act itself. This is a complete delegation of power to the executive, and there is no clear and binding framework proposed for the exercise of the powers in the amendments, and this is constitutionally impermissible.
This could lead to charges that the powers delegated to the Minister are auto virus and as in the case with natural health remedies and alternative remedies. It would seem that the amendments were drafted without taking into account the findings of the Apex court in the case of Smit vs the Minister of Justice in 2020, or in the cases of the Ministers of Health and others in 2022 in the Supreme Court of Appeals.
The final premise that the CDCSA would like to submit is that the proposed amendments fall foul of constitutional obligation and have very little chance of passing constitutional muster and we would need to deliberate further with Parliament and we desire to make further representations to Parliament in drafting and legislating this Bill.