President Cyril Ramaphosa signed the Drugs and Drug Trafficking Act of 2022 into law on 12 December 2022, five days ahead of the Constitutional Court deadline to do so. In assenting to the new Act, the President has set back his own cannabis reform plans by continuing to criminalize the plant.
South Africa has a brand new Drugs Act that came into force on 14 December 2022.
The Drugs and Drug Trafficking Act of 2022 was rushed through the parliamentary process to avoid a legal vacuum around drug prosecutions. Had the President not assented to the Act before the long weekend, all prosecutions under the old Act could have been challenged.
With South Africa identified as a major transit route for hard drugs such as cocaine and heroin, it’s understandable why MP’s were panicked into passing defective legislation. There's also the growing problem around nyaope. The alternative was a crisis in the criminal justice system. But the million dollar question remains as to why cannabis was included in the Act as an “undesirable, dependence, producing substance” after lawmakers actually removed it.
MP’s also completely ignored over 300 public submissions on the Act, most of which objected to cannabis being listed in the Act.
The major problem with the Act is that it is in fundamental opposition to the National Cannabis Master Plan which envisages legacy growers being incorporated into the mainstream economy. The new Act continues to criminalize the 900 000 or so traditional cannabis growers the government says it wants to help.
As one observer noted: “the Drugs Act opens the way to new avenues of corruption, particularly in Mpondoland, where there are already allegations of police bribery in exchange for the safe passage of illegal cannabis. The Drugs Act will hit the most vulnerable the hardest”.
Another big problem is that the Drugs Act stymies South Africa’s hemp industry from the get-go. Hemp farmers may be charged under the new Act if their crops exceed the 0,2% THC limit and their harvests may be seized by police. By scheduling “Cannabis (dagga), the whole plant or any portion or product thereof, except dronabinol 45 [(-)-transdelta-9-tetrahydrocannabinol]”, the Act also makes the acquisition of hemp seed illegal, according to one interpretation. The inclusion of those 15 words in Schedule 3, means that until such time as the Act is amended again, there can be no commercial trade in cannabis products.
The Act also outlaws the Private Cannabis Club model and effectively undermines the proposed Cannabis for Private Purposes Act which allows for the private cultivation and consumption of cannabis. The Act outlaws the acquisition of seed for home cultivation, which makes a mockery of the Private Purposes Bill – it’s all very well to legally grow your own cannabis at home but you can be arrested for buying the seeds with which to do so.
The new Drugs Act is also problematic in that it is still in violation of the Constitution. Earlier this year, Concourt found that sections of the 1990 Drugs Act discriminated against minors and gave Parliament two years to rectify the defect.
The inclusion of cannabis as a listed substance in the Act means that cannabis arrests will continue and the industry will remain largely underground.
From a financial perspective, the Drugs Act has been seen as the biggest impediment to investing in the cannabis industry. Mainstream financial institutions cannot get involved in funding the cannabis sector because it continues to be defined as a narcotic.
Three days after the President assented to the Act, effectively agreeing to continue criminalizing cannabis, his office made the astonishing assertion that this wasn’t actually what the President had in mind. In fact, according to Operation Vulindela, one of the Presidency’s 2023 priorities was to “create an appropriate legislative framework for hemp and cannabis”. It’s no wonder there’s such confusion around cannabis reform.
For all the reasons above, the 2022 Drugs Act is likely to be referred back to Parliament during the course of the next year. It may also be that alternative legislation has to be drawn up, exempting certain jurisdictions from the Act - so-called “sandbox” regulations.
Gauteng’s bold plans to create Special Economic Zones (SEC’s) where cannabis can be produced at industrial levels will also have to be put on hold as the new Drugs Act does not allow this (unless the producers have SAHPRA licenses, whereby their crops are only for export, and if they fail to make the grade, there is no alternative but to destroy the harvest).
By passing the Drugs Act into law in its current form, the legislature has created a blunt instrument that will do more harm than good. This is a major setback to cannabis reform as it will continue to criminalize the very people government claims it wants to help, it entrenches the wealthy as the sole beneficiaries of new cannabis legislation as they can afford to export at a large scale, and maintains the status quo where a R28 billion industry remains largely illegal and is a source of widespread corruption within the SAPS.
It appears that 2023 will be largely a year of Government untangling the mess it made of cannabis reform in 2022. It is hard to think of this as progress.
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