The Justice Department is in serious trouble over the Cannabis for Private Purposes Bill. Five years after being ordered by the Constitutional Court to enable legislation legalizing cannabis, state lawyers have been accused of producing “apartheid” legislation and are facing yet another impossible deadline!
The Justice Department came in for a gruelling by stakeholders and MP’s in Parliament on 23 and 24 May 2023, when the Cannabis for Private Purposes Bill emerged as one of the shoddiest pieces of legislation put before the democratic parliament.
The sessions exposed serious shortcomings in the legal drafting process and an appalling lack of both creative thinking and technical knowledge by those responsible for balancing the landmark 2018 Constitutional Court ruling with Government's desire to turn cannabis into a post-Covid economic driver. The last two days have been dire and depressing in seeing the legislative drafting process go backwards, but what has been postive is the increased level of sophistication and engagement from non-Government stakeholders. What's also positive, and acknowledged by many of those presenting, was how the Parliamentary Committee was taking the public input process seriously, even if there were problems with the process.
But back to the Justice Department’s woes: the Committee wants to pass the Bill in to law this year and it still has to be signed off and go to the National Council of Provinces which will then be required to open up the proposed law for public comment across the country. It had set itself the deadline of 9 June 2023 to sign off on the Bill, but this is highly unlikely to happen, because:
Senior state lawyer Sarel Robbertse is man-down with health issues and will take some time to recover - although he's a narrow-minded prohibitionist, he still is a key repository of cannabis legislative thinking and has the repect of the Committee, if not all stakeholders;
The Department’s current replacement, Moku Makabela, is not on top of his game: his defence of the current incarnation of the Bill was off-tone, and he also thinks cannabis and hemp are different plants and should remain under the control of the criminal justice system! Hello?
The latest state lawyer to be thrown into help clear up the mess is H du Preez, seconded recently to help draft legislation. He's admitted he’s “green” to cannabis and doesn’t know his THC from his CBD, and correctly wondered, in his naivity, why a private purposes bill was making provisions for hemp and cannabis commercalization. No such thing as a stupid question, but it's a bit alarming that he's expected to help Makabela incorporate stakeholder input into another version of the Bill – by Friday next week, nogal.
MP’s gave Makabela until Wednesday, 31 May 2023 to pull together a coherent response to stakeholder input for the Committee to discuss. Makabela managed to score two extra days and the Committee will meet again on Friday, 2 June, to discuss the latest amendments.
MP’s have asked the Justice team to provide, on that day, the rational evidence on which certain parts of the Bill are based on. The problem is that there doesn't seem to be any.
Makabela admitted freely to MP’s that the Department took it upon itself to decide on the limit of four plants person in the latest draft of the Cannabis for Private Purposes Bill, and there was no rational evidence to back this up.
This was one of the shockers that emerged from two days of input by more than 20 stakeholders to the Parliamentary Portfolio Committee for Justice and Correctional Services. The lack of depth and conceptual knowledge in the Justice Department’s legal team was evident from some of their questions: another cracker was also from Makubela who thought one of the differences between hemp and cannabis was in the size of the plants, the former being the little ones and latter being the bigger ones.
At the lunchtime close of business on Wednesday, 24 May 2023, it was apparant to all that the bill in its current form is a constitutional mess. As lawyer Paul Michael Keichel pointed out: “Hemp and commercial provisions appear to be capitulations by the Honourable Committee. They are unprecedented expressions of intent which have no basis in legislation and unless we get this right, the law will be tied up in court for years to come”.
There was a palpable sense of dismay amongst committee members as the realization sank in that there's no quick fix to the cannabis connundrum. Either, rush through a piece of inappropriate legislation that will never see the light of day because of court challenges, (in order to try and clear the 6th Parliament's legislative backlog before next year's elections), or risk personal accountability for contempt of court, as Andre du Plessis of the Cannabis Action Group and Jeremy Acton of the Dagga Party threatened.
Gareth Prince, chair of the Cannabis Development Council, said that MP's could be held personally liable for decisions made around the Bill and also highlighted the fact that the Justice Department was introducing legislation that ignored the environmental impact of what it was proposing.
Keichel called for an executive order to halt cannabis arrests, while the Marijuana Board said this would be the last “Codesa” they’d have with Parliament if arrests and prosecutions continued. Ras Inity Thulo Mpholo of New Race Consciousness said the Bill would lead to the continued systematic marginalization of previously disadvantaged people and would encourage police corruption”.
Fields of Green for All co-founder, Myrtle Clarke, said the continued criminalization of cannabis was unacceptable. Her partner, Julian Stobbs, was murdered three years ago by home intruders and yet SAPS had made no effort in trying to find his killer. In the meantime, she is being treated as the criminal, with their original arrest (which prompted the Constitutional Court case legalizing cannabis), still being on the court roll.
A dominant theme through the hearings was to transfer cannabis policy away from the security cluster and to look for the benefit/harms ratio in legalization to be administered by the ministries of Trade and Industry, Agriculture, Health and Social Welfare.
Committee chair Bulelani Gift Magwanashe instructed the Justice Department to go back to the drawing board and fix the problems raised during the hearings. He supported MP Maseko Jele’s request for the Department to bring to the table the rational evidence it had based its decisions on.
The problem is that there aren’t any. Makabela said the restrictions on plants that could be cultivated in a private place was an arbitrary decision by the Justice Department based on a comparison with other countries where cannabis was being legalized.
MP's expressed concern about the lack of local research and that Justice was relying on northern hemisphere data to shape a southern hemisphere policy.
Another problem with the Bill is on a Parliamentary technicality. It was incorrectly tagged as a 75 tag where the intention was for it to be a 76 tag. In short this has to do with restrictions on the extent of public input, but Parliamentary legal advisor, Dr Barbara Loots, said it would not be a problem to retag the Bill further down the line.
Almost all the speakers pointed to the contradiction of a commercial hemp provision in a private purposes law and said the terminology being used was scientifically inaccurate.
Some MP’s and Justice department officials seemed surprised to learn that cannabis and hemp are actually the same plant with differing levels of THC and that if the term “industrial cannabis” or “cannabis for industrial purposes” were substituted for “hemp” the whole legislative nightmare could have been avoided.
The State’s legal architects took a hammering from former ANC MEC and DG, Max Ozinsky, amongst who’s other work experiences was being the commander of an MK cell during the apartheid years. He was also bust smoking a joint 25 years ago (and had to pay a R60 fine or spend 60 days in jail). He talked a language that the ANC understood!
“The Department of Justice is the big problem. It behaves as if we are under apartheid security”.
He told MP’s that the Justice Department clearly giving them the “wrong advice”. He said it was unacceptable that SAPS were continuing to criminalize cannabis when the Constitutional Court had already ruled in favour of legality. Despite this the security cluster was opposing all legal attempts to try and bring about regulatory clarity.
Jeremy Acton, founder of the Dagga party, also put it strongly: “The Minister of Justice attempts to appropriate, like a gangster, the cannabis resource for himself and make himself the sole decision maker and licensing authority and a determinant of policy in the cannabis industry. This is rejected!”
ACDP MP Steve Swart thought this was borderline disrespectful. Acton's attitude was unapolegetic. His view was that the cannabis community was liberating the plant, not the Government, "so get used to it!"
Lawyer Ricky Stone of the uMzimvubu Farmers Support Network in Mpondoland, Eastern Cape, that if the Bill was passed into law in its current form, President Cyril Ramaphosa’s vision of an all-inclusive cannabis economy, as pledged in his recent State of the Nation Address, would be to nought. This because the new Cannabis law would be tied up in litigation, a point raised by several other panelists, with lawfare plans already being put in place.
He said the Bill was “one step forward and a thousand steps back” and would criminalize all traditional growers instead of seeking their extensive knowledge and protecting their landraces”.
The warning signs were loud and clear in Parliament this week. Between the state's legal drafting tailspin and the sinking of the Private Purposes Bill into a self-created legislative swamp, the increasing militancy of stakeholders and yet another impossible deadline, MP's are yet again starting to panic about the mess they've made of cannabis reform. This time around it's getting personal though, as lawfare may well come down to an individual accountabilty basis - and MP's and Justice Department officials may find themselves personally liable for the breaking key tenants of our Constitution.