The South African Government has made a complete mess of cannabis legalization. With all the tools at its disposal to effect a regulatory environment that will benefit the country at large, it has failed spectacularly. As the year draws to a close, it’s become patently clear that all talk from the Union Buildings this year about enabling a cannabis economy has been vacuous. Eish! Is this a consequence of stupidity or criminality?
Horrible thought! Are Cannabis Policy-makers Either Stupid or Criminal?
Cannabis reform in South Africa has failed spectacularly during 2022, either as a consequence of dysfunctionality or criminality.
There have been no political impediments to President Cyril Ramaphosa fast-tracking cannabis reform as he promised in SONA in February 2022, which means there are two uncomfortable conclusions to be drawn:
Either the Government is so completely incompetent or dysfuntional in that it cannot draft laws that reflects its own policy; or
There is a more sinister agenda at play – that of the Gangster State.
Consider this. The Government estimates that the illegal cannabis industry turns over R28 billion a year and we are among the biggest exporters of illegal cannabis in Africa. One doesn’t have to watch Netflix to know that this cannot happen without the collusion of certain elements of law enforcement. The logical conclusion for this train of thought is that there are individuals within the criminal justice system who stand to lose should there be outright cannabis legalization and it is in the interests of certain powerful people to impede the legalization of cannabis.
Germany Makes Us Look Like Amateurs
South Africa has had first mover advantage in the cannabis space since it started hemp trials way back in the late 1990’s. Since then it has squandered every opportunity to transform the potential of the plant into economic benefit for the good of South Africans. The bumbling ANC government’s good intentions around unlocking the potential of cannabis stand in embarrassing stark contrast to Germany, where the new coalition government has put in place clear time frames and guidelines for full adult-use legalization, been pro-active in engaging with stakeholders and has made it easy for medical cannabis patients to sign up for treatment. And it’s going to do it’s best to be self-sufficient in all its cannabis requirements. Germany is adopting a wholistic approach to the plant, unlike South Africa, where cannabis reform could best be described as a bad dog’s breakfast, bereft of imagination or ideological direction and laden with hypocricy.
Depressing Dip Stick Into The State of Cannabis Affairs
While Germany is forging ahead, this is the depressing status of the South African cannabis industry right now:
The Drugs and Drug Trafficking Ammendment Act of 2022 is due to come into force in the next few weeks, and it still continues to criminalize cannabis, with the Department of Justice ignoring any input from Presidential cannabis advisor Garth Strachan;
The Drugs Bill was approved by the Justice and Correctional Services Committee which ignored every bit of public input on the Bill. The reason being that if the Bill does not become law by 17 December 2022, all convictions under the previous Drugs Trafficking Act will become open to challenge;
The Drugs Act in its new incarnation remains fundamentally flawed, with the Constitutional Court giving Parliament two years to amend the Act to remove the sections that discriminate against children guilty of cannabis offences;
SAHPRA has also made no input into the new Drugs Trafficking Act as to which substances it suggests should be included – the proposed Act also legislates that every new illicit substance to be included in the Act’s schedules needs to be approved by an Act of Parliament rather than a designated expert. This puts MP’s in the unenviable position of having to pass laws concerning a subject to which they admit they have scant knowledge;
Provinces are powerless to push ahead with their own cannabis plans until such time as National Government creates the right regulatory framework;
The Deputy Justice Minister John Jeffery has complained that state legal advisors appear to be beholden unto themselves as the cannabis laws they’ve drafted do not reflect state policy;
The Cannabis for Private Purposes Bill is floundering around in the Parliamentary system and if passed into law is certain to be challenged in court – it does not allow the Private Grow Club Model, despite the fact that it is completely in line with the Constitution. At best, the Bill allows for future legislation for the commercial trade in cannabis and related products, but is the narrowest interpretation of the landmark 2018 Constitutional Court ruling that the private consumption of cannabis is legal;
The chair of the Parliamentary Committee on Justice and Correctional Services, Bulelani Mangwashe says he’s concerned about the disconnect between Parliament and the Executive and that MP’s are being set up to fail in passing cannabis-related legislation; he’s also concerned that cannabis legislation appears to be driven by obligations to obey court orders instead of being generated by Parliament;
The legality of the Private Grow Club Model is heading for the Supreme Court of Appeal as Western Cape Hgh Court Judge Hayley Slingers has admitted that another court may come to a different conclusion to her rejection of the application by The Haze Club to recognize the legality of such clubs; she depended on the Drugs and Drug Trafficking Act to make her ruling that PCC’s were effectively drug dealers in terms of the Act;
The Ministers of Police, Justice and Correctional Services and the Director of National Prosecutions all opposed THC’s application for leave to appeal against the Western Cape High Court ruling, which means they are to this day opposing any cannabis reform;
The Private Sector Working Group has done the Government's work in drawing up a comprehensive over-arching cannabis law (The Webber Wentzel document) but this initiative has collapsed as Government has not engaged seriously with private cannabis stakeholders;
The Plant Improvement Act has defined hemp as having a THC content of less than 0,2%, despite every stakeholder saying this is unrealistic for South African climate which causes THC spikes in cannabis – the rest of the world is trending towards a 1% THC limit in defining hemp;
There is no mechanism for registering local cannabis landraces if they have a more than 0,2% THC;
Hemp permits are restricted to 50 ha a permit-holder which rules out the economies of scale in developing a domestic hemp industry that can serve the construction, animal feed and textile industries;
Only five of South Africa’s 90 or so SAHPRA-license holders are legally exporting, which means that 90% of the industry may be in trouble;
SAHPRA license holders are dumping product that they cannot export into the domestic illegal markets – this is a landmine waiting to explode in that it could result in criminal prosecution, license withdrawal and financial catastrophe for those implicated and it will have wider ramifications on the industry;
The dumping of export-quality, high THC cannabis by certain SAHPRA license holders has led to a stockpile of cannabis in Mpondoland, where traditional growers are still being persecuted by police and there are allegations of SAPS involvement in cannabis smuggling, particularly in the Lusikisiki area;
The Mpondoland stockpile means that legacy farmers aren’t earning and that is having a direct economic impact on the lives of poor people in hundreds of villages in the Eastern Cape;
The Section 21 medical cannabis patient system is not sustainable and is suspected of being abused by certain organizations as a way of distributing recreational cannabis;
The specified THC limits on CBD products affect their efficacy and are already backfiring on an industry that is beset with product mislabelling;
The Government has re-appointed Anban Pillay to Head of Compliance in the Department of Health, despite the fact that he is still to face criminal charges relating to the Digital Vibes scandal in which the Minister of Health was implicated in benefitting from an illegally awarded tender; Pillay is ultimately SAHPRA’s go-to-man at the Department and the fact that he is implicated in corruption, casts an unnecessary pall over the cannabis industry licensing regime.