There are over 900 cannabis related bills under discussion in the United States, but only one bill in the pipeline in South Africa that seems to have got lost in the darker recesses of Parliament. State lawyers are trying to figure out how to circle the proverbial square of matching Government policy with enabling legislation that does not contravene international law.
The Cannabis for Private Purposes Bill is expected to be passed into law in the next few months, with indications that it will accomodate the needs of legacy growers. However, the status of the Bill is unclear with even Government cannabis advisor Garth Strachan usure of what it will look like as a final Act.
In his State of the Nation Address (SONA), President Cyril Ramaphosa said that traditional cannabis growers would receive Government support and that urgent interim measures would be put in place to make sure they were included in cannabis reform. However, there have been no further details as to what these measures will look like.
Observers believe that there will be an addition to the Cannabis for Private Purposes Bill that will accomodate them, although it’s unclear how this will gel with the Drugs and Drug Trafficking Act of 2022, which criminalizes any commercial activity around cannabis with THC levels of higher than 0,2% - unless its for export under a SAHPRA license.
The Parliamentary Monitoring Group (PMG) says that in late 2022, the Portfolio Committee on Justice and Correctional Services requested permission to extend the subject of the Bill, but is still awaiting confirmation.
The Bill has been panel-beaten to allow for aclause that allows a future commercial framework for the industry, but there are still serious shortcomings in the proposed legislation that many stakeholders say will not pass constitutional muster.
The Bill has gone through at least five incarnations as state law drafters battle with the complexity of a legal cannabis regime and ideological conflict between different Government departments. Strachan, appointed a year ago as the President’s cannabis advisor has made it clear how difficult it is to get the nine Government departments affected by cannabis legalization into line. He has been openly critical of the piecemeal approach to cannabis reform and favours one over-arching cannabis law for the country, but says this will take some time. Friends of Hemp SA co-founder Ayanda Bam believes comprehensive cannabis legislation is at least three years away.
The recent release of the Institute for Economic Justice’s Cannabis Report has highlighted the inadequacies of South Africa’s current cannabis reform path, with co-author.... criticizing the Bill for discriminating against low-income groups.
State legal advisors have been criticized for drawing up laws to obey Constitutional Court judgements rather than Government policy and Justice Minister Ronald Lamola is a self-confessed prohibitionist whose views are at odds with the Presidency.
The PMG said the Bill was necessitated by the Western Cape High Court ruling in 2017, which found sections of the Drugs Act and Drug Trafficking Act unconstitutional, effectively allowing adults to use and grow the plant for personal use in the privacy of their own homes.
The PMG says cannabis laws have historically been in limbo, leaving consumers and growers uncertain about the boundaries of regulations.
The new Bill aims to address grey areas regarding the use, cultivation and selling of cannabis in South Africa. One of its main pitfalls is that although the private cultivation of cannabis will be legal, obtaining the seeds to do so remains illegal.
Another grey area is what a ‘private space’ is. Under current laws, it is permitted to use and grow cannabis in private spaces. However, it is still unclear what exactly is defined as a “private space”.
This lack of clarity has caused confusion as to whether areas such as one’s home, car, or other owned spaces are considered private and, therefore, permissible for cannabis use and cultivation.
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