Brett Pollack, Legalize with Marleen Theunissen, Cradlestoned Quality Solutions
At face level The Phakisa was the breakthrough moment South African cannabis stakeholders have been waiting for. However, behind all the good intentions are a number of serious questions that need to be answered, like where's the new directive to halt cannabis arrests? Brett Pollack of Legaleze and Marleen Theunissen of Cradlestoned provide the deep dive.
This report first appeared on Legaleze's website on 3 July 2023.
The Cannabis Phakisa Action Lab (Phakisa), held from 19 to 23 June 2023 under the auspices of the Department of Agriculture, Land Reform and Rural Development (DALRRD) and the Presidency, has been hailed as a historic event in South Africa’s journey towards establishing robust and inclusive Cannabis economies.
The Phakisa, meaning “Hurry up!” in Sesotho, brought together key players, experts, and stakeholders to secure policy coherence and discuss time-bound activities across multiple government departments. The resolutions adopted at the Phakisa are set to shape the future of the South African Cannabis industry. Might the South African Cannabis sectors finally be setting themselves on a path of coherence and fairness?
We celebrate, present and probe some of the major resolutions that were taken at the Phakisa.
The demise of prohibition
The Phakisa took a significant step towards the demise of prohibition in South Africa. While (1) licensed activities are haughtily authorised in the pharmaceutical sector under the Medicines and Related Substances Act, 1965 (Medicines Act), and (2) the private cultivation, possession and use of Cannabis by adults for their personal and private consumption (private-use rights) were decriminalised by the Constitutional Court in the landmark 2018 Privacy Judgment, the Drugs and Drug Trafficking Act, 1992 (Drugs Act), continues to criminalise essentially all other Cannabis-related activities under the banner of ‘dealing’.
Technically, even, the permitting framework in the infant ‘Hemp’ sector, introduced by the DALRRD in 2021 by way of garbled regulations under the Plant Improvement Act, 1976 contravenes the Drugs Act.
According to the Presidency, the Phakisa resolved to explore mechanisms for fast-tracking the removal of Cannabis from the Drugs Act, marking a critical turning point in dismantling the prohibitionist Cannabis era. The first death knells seem to be ringing!
But when will this amendment take place? Will it be possible to push it through Parliament without protracted debate? If it happens prior to the enactment of legislation commercialising the adult-use (co-called ‘recreational) sector, will we experience something akin to what Ireland did in 2015 when it accidentally legalised ecstasy, ketamine and magic mushrooms for a day? Oops. Imagine the wonders of a Cannabis free-for-all for a day… or more.
Private-use rights, not criminal prohibitions
The Phakisa resolved to reinforce a 2019 directive that instructs SAPS members to respect private-use rights, and to ensure the least intrusive measures are used when securing an accused’s court attendance. Apparently, representatives of the Justice Department and the SAPS admitted at the Phakisa that SAPS officials continue to conduct unlawful and abusive Cannabis arrests, and resolved to issue a new directive, with serious liability implications for non-compliant officers, by Friday 30 June 2023.
An adapted, decidedly human-rights-focused SAPS directive is desperately required.
Disappointingly, at the time of writing, no such directive could be sourced. As we eagerly await its publication, we do question how and whether SAPS officials will be held accountable in terms of properly established reporting channels and legal processes. While the new/updated directive is in place, how will the SAPS treat Private Cannabis Clubs established for the bona fide exercise by their members of their private-use rights? How might this (or the removal of Cannabis from the Drugs Act) impact the pending appeal of the 2022 High Court Judgment, which ruled that the model of Private Cannabis Club in casu constitutes the crime of dealing in Cannabis?
The Cannabis for Private Purposes Bill (Bill) was originally intended as Parliament’s attempt to give effect to the private-use rights. Since its introduction in the National Assembly in 2020, civil society has decried the Bill’s perpetuation of state invasion and continued criminalisation of the Cannabis community and promised to attack its constitutionality in toto if enacted. Since then, the Bill has broadened in scope, incoherently retrojecting clauses for the commercialisation of the so-called ‘Hemp’ and the adult-use sectors, and Traditional Use, for instance. While the Bill’s scrapping was seriously considered, the Phakisa decided to send the Bill back to the drawing board for realignment with the Privacy Judgment, that the ‘Hemp’ and Traditional Use clauses will be removed with hopeful hints that the SAPS will have no invasive ‘plant-counting’ powers.
As we celebrate this gigantic concession to the educated submissions of industry experts and civil society, we wonder whether and the extent to which the Justice Department’s Portfolio Committee (that spearheads the drafting of the Bill) will heed.
Might the next iteration of the Bill substitute politically loaded concepts like ‘traditional’ use with simpler language empowering Cannabis users to associate with others in exercising their private-use rights?
Does the scrapping of the commercialisation clauses in the Bill signal the imminent legalisation of the commercial adult-use Cannabis markets under a consolidated legal framework to be regulated by a newly established, administrative, agricultural Cannabis regulator? What will that look like? Are the licensing regimes and restrictions in our liquor and tobacco laws anything to go by?
Many argue that the South African Health Products Regulatory Authority (SAHPRA) has no lawful mandate to regulate the cultivation of the Cannabis (or any other) plant; that this lawful mandate commences at manufacturing stages when raw materials are purchased and APIs in the form of Scheduled substances – such as THC and CBD in the case of Cannabis – are extracted. The argument was bootstrapped in 2020 when the Minister of Health (acting on SAHPRA’s own recommendations) removed reference to the plant from the schedules to the Medicines Act.
We understand that, at the Phakisa, SAHPRA committed to shift the focus of its licensed facilities from cultivation to manufacturing activities and review the Schedules to the Medicines Act – envisaging cultivation of Cannabis for non-medicinal (including industrial) purposes.
Suppose SAHPRA does finally surrender to some meaningful degree, will the DALRRD oversee the cultivation of Cannabis, in general, to the exclusion of SAHPRA? And how would this be enacted?
Would it require a mere agreement by SAHPRA? Or is a firm amendment to the substantive provisions of the Medicines Act (that have regard to SAHPRA’s powers) required? This could cause an interesting stir if explicit references to the “coca leaf” and “Opium-poppy and poppy straw” in Schedule 6 are left intact. Alternatively, will the THC, CBD and other potential inscriptions of cannabis compounds (cannabinoids) in the Schedules be individually amended?
What will come of the ±100 medicinal Cannabis cultivation SAHPRA licensees who have spent millions of rands (if not dollars) building facilities that comply with globally recognised good agricultural and collection practices (GACP)? As a result of regulatory teething issues, we understand that many licensees are experiencing investment fatigue and struggling to export. Some even resorting to the illegal markets, cheaply – and largely with impunity – offloading their medicinal-grade flower to the clear and present endangerment of subsistence small-scale farmers in many rural regions, and bona fide Private Cannabis Clubs. If current licensees cannot convert to good manufacturing practice (GMP) facilities, will they be restricted to exporting bulk Cannabis raw material, and forced to forego the millions wasted in the construction of their globally accepted GACP facilities?
On the other hand, will anyone that complies with a generally acceptable agricultural standard that applies to produce like tomatoes and onions be allowed to cultivate Cannabis intended for medicinal markets? And will the biomass be graded at regional hubs or directly taken up by GMP, SAHPRA-licensed facilities? We doubt that only those such as legacy/subsistence growers and Rastafari who have been systematically oppressed – both during apartheid and in the currently dying prohibitionist era – will benefit from such a relaxation.
The Phakisa has given us reason to believe that the right balances will be struck. But what will they look like? And how long will it take to enact?
Industrial – so-called ‘Hemp’ – Cannabis
In addition to well-articulated commitments made in the realms of investment, capacity-building, research, and innovation, it is reported that the term ‘Hemp’ might finally be jettisoned as a means to refer to Cannabis cultivated and processed for manufacture of industrial products and replaced by the phrase ‘Industrial Cannabis’.
At first glance, the change is semantic.
But properly construed, it would augur a green-revolutionising dispensation favouring end-use regulation of industrial products as, e.g., cement, textiles, clothing, biofuels, animal/human food, and nutraceuticals, among thousands of others, over an unscientific, random and unachievable THC concentration. Such a development would render as viable the bountiful fibrous and stalk biomass cultivated by legacy farmers in regions like Mpondoland, for example, heralding a new and inclusive epoch in the industry.
Assuming these changes are at hand, we wonder how the ±400, already-permitted ‘Hemp’ cultivators will be impacted? What happens in the interim? Will there be any licensing regime governing standards and requirements applicable to primary processors of Industrial Cannabis biomass? Will there be separate regimes – permit conditions and agricultural standards – applicable to legacy growers in the former Transkei and elsewhere, and the rest of the market? If so, what will these differing standards look like?
Will the agricultural and licensing standards and restrictions to be codified in the still non-existent adult-use sector be different from those in the Industrial sector? Will all permit holders in the Industrial market be permitted to sell their THC and other cannabinoid-containing flowers to licensed processors and manufacturers in the pharmaceutical, adult-use, and potentially even food and cosmetic markets? If THC concentrations are to be scrapped, then surely we can rest assured that local, landrace genetics will be embraced?
How far did the discussions at the Phakisa go? And when can we expect the updated legal framework?
If duly discharged, the commitments made at the Phakisa will finally see our Cannabis sectors’ liberation from their most hamstringing hindrances. With national elections around the corner, might the days of empty state of the nation statements be over?
We believe that, for the first time, there is a real and collaborative urgency to get our industry inclusively off the mark, and to address the burning questions in tow.
Cannabis activism teaches us: if you liberate the plant, you liberate its people. The Phakisa was a colossal, collaborative effort demonstrating our capacity to do both.
We celebrate this moment.
With ears to the ground, tentacles outstretched, fingers on the pulse, and all, we ask: what comes next?
And proclaim: Phakisa!
The outcomes and resolutions of the Phakisa referred to in this article are sourced from the Presidency’s press release and this 24 June 2023 report by Marleen Theunissen of Cradlestoned Quality Solutions, which collates information gathered from participants at the Phakisa.)