Traditional healers will enjoy fewer privileges than Rastas under proposed law

The Cannabis for Private Purposes Bill has unwittingly pitted the interests of the Rastafarian community against those of traditional growers and healers. The Bill, which has had four major revisions in its twisted journey through the Justice and Correctional Services Portfolio, was signed off by the National Assembly on 31 March 2022, but has been re-opened for public comment ahead of being ratified by the National Council of Provinces.

The public has until 11 May 2022 to have its say on the latest amendments, the main two being:

• A section that would enable future legislation to allow the commercial trade in cannabis;

• Special exemptions for Rastas, including the right to smoke in public

A reliable Cannabiz Africa source, who seeks to remain anonymous, says the section allowing for special treatment for Rastafarians and other religious groups is certain to raise the ire of traditional growers and traditional healers who have had a long association with the plant.

“You can’t tell me that it’s right that the people of Mpondoland cannot smoke in public but that Rasta’s can. How can that be right? The drafters of this bill seem to think only previously disadvantaged people are Rastas. You cannot tell the rural people who have been working with cannabis for years that a young white Rasta, who may be genuinely committed to the belief system, qualifies for certain exemptions but they don’t. It’s unconstitutional and I’ve got no doubt that as soon as the Bill is passed into law and becomes an Act, it will be challenged in a court of law” said the source.

State’s own law advisors admit the Bill is on shaky legal ground

Even, the state’s own law advisor, Sarel Robbertse, in presenting the amended Bill to parliamentarians earlier this year, warned that the ‘commercial trade enabling clause’ put South Africa at risk of its international obligations, while private sector lawyers have been almost unanimous in their view that the Bill won’t pass constitutional muster.

Cliffe Dekker Hofmeyr’s analysis of the draft Bill is that it throws up “a number of red flags”.

“The focus remains on restricting access to, and the use of, cannabis against the threat of rather severe legal consequences in the form of fines and jail time,” it said  in a legal note.

“What those in the industry were hoping for was a collaborative effort between the various departments such as Health, Agriculture, Finance, and the like.”

Cliffe Dekker Hofmeyr says that the drafters of the bill adopted a ‘narrow and traditionalist perspective’, which as currently constructed, does not give an inch more than was mandated by the Constitutional Court.

Most glaring failure of the Bill is in kicking ‘commercial framework’ into touch

Perhaps the most glaring of all the omissions from the bill is its complete failure to address most commercial aspects and opportunities of cannabis, the firm said. Although the new section in the Bill enables future cannabis legislation to legalize cannabis, for the time being there is no allowance for any kind of cannabis trade of products containing more than 0,2% THC unless one is a SAHPRA license holder.

“Furthermore, by prohibiting the exchange of remuneration for cannabis, cannabis plants, seeds, and seedlings, the Bill envisages idealistic altruism while completely ignoring the commercial realities involved in growing, processing, and supplying cannabis for personal consumption.

“In practice, this amounts to self-defeating legislation, forcing the average person to obtain cannabis illicitly, reinforcing the existing black market, and depriving the economy of attainable tax income.”

“Currently, the only commercial opportunities available in the industry relate to farmers who can obtain a licence to either export their yield or supply it to a laboratory that has the necessary licences for the treatment, processing, and manufacturing of cannabis-related products, the firm said.

“This is insufficient to ensure that the whole country has the opportunity to participate in, and benefit from, the cannabis economy”.