Department Response to Public Comments on the Cannabis for Private Purposes Bill [B19B – 2020]
The Chairperson acknowledged the team and Members, signalling a transition in the meeting's agenda. With no additional inputs or queries from Members, the Chairperson hinted at further deliberations on the Bill in the next meeting, possibly considering adoption.
Moving on to the second agenda item, the Chairperson addressed the Cannabis for Private Purposes Bill, reminding Members of the previous briefing on 15 November 2023. The Bill establishes a new legal framework for adult private use of cannabis and addresses issues related to children and cannabis in accordance with the Constitution and judgments from the Constitutional Court in 2018 and 2022.
The Bill underwent a public comment period from 30 November 2023 to 19 January 2024, resulting in a substantial response of 46 submissions, including 19 substantive petitions. The Chairperson highlighted that those public submissions raised concerns about the Bill's tagging, public participation, and constitutionality.
The Chairperson outlined the plan for the meeting, first hearing from the Department on their responses to public submissions, followed by addressing legal aspects from the parliamentary legal advisor.
Remarks by Deputy Minister
Deputy Minister Jeffrey provided insights into the Cannabis Bill, stating that its primary purpose is to address a constitutional case. He underscored the Bill's objective of decriminalising cannabis, achieved by excluding it from the Drugs and Drug Trafficking Act. Deputy Minister Jeffrey highlighted a notable provision allowing for cannabis cultivation, subject to specific quantities to be decided by the Minister of Justice. Additionally, he reminded Members of the Bill's historical trajectory, originating in 2020 and undergoing subsequent advertising processes in the National Assembly.
Mr Makubela Mokulubete, Legal Advisor, Department of Justice and Constitutional Development, thanked the Committee for the opportunity to present. He proceeded to inform the Committee about the comments received and the Department's responses.
Mr Mokulubete acknowledged the extensive document, approximately 31 pages, containing substantive comments from various contributors. He proposed highlighting the most significant issues requiring the Committee's attention to facilitate discussion. The key points addressed were as follows:
Advocates for Cannabis Reform
Various submissions called for a regulatory framework similar to alcohol. Mr Mokulubete clarified that such concerns fall under the scope of national legislation intended for the commercialisation of cannabis, not the current Bill.
Fairness and Equality Concerns
Some submissions argued that the proposed Bill deviates from principles of fairness and equality. Mr Mokulubete highlighted restrictions in the Bill, such as the prohibition of smoking cannabis in public or in the presence of children or non-consenting adults.
Cultivation Rights
Questions arose about the right to grow cannabis, especially concerning benefits for black communities. Mr Mokulubete emphasised that the Bill applies universally and does not exclude any racial group from cultivating cannabis. However, the selling of cannabis remains strictly prohibited.
Private Social Clubs
Submissions suggested recognition of private social clubs for cannabis-related activities. Mr Mokulubete clarified that such matters would be addressed in the anticipated national legislation focused on commercialisation.
Public Input Significance
Concerns were raised about public input, with emphasis on the importance of considering feedback. The legal advisor assured that public inputs are integral to the legislative process, and all comments received would be duly considered.
Quantities for Cultivation
Questions were raised about the delineation of quantities for cannabis cultivation favouring highly skilled cultivators. Mr Mokulubete explained that the Bill does not prescribe quantities; instead, these details would be specified in regulations to be promulgated by the Minister.
Enforcement and Police Corruption
Concerns were expressed about enforcing counting of plants and potential police corruption. Mr Mokulubete clarified that the police would enforce compliance with the Bill, and allegations of corruption should be reported to relevant authorities.
Contradictions in the Bill
COSATU highlighted perceived contradictions in the Bill, legalising cannabis but imposing significant restrictions. Mr Mokulubete explained that while the Bill aims to legalise cannabis, certain conduct, such as smoking in the presence of children, must be restricted.
Continued by stating that there is an inquiry into how individuals, specifically runners above the age of 18 still at school, will be addressed under the proposed Bill. He suggested that, in their view, these cases should be handled according to the Section 18(k1) of the South African Schools Act, 1996 (Act No. 84 of 1996), which prohibits the use or possession of illegal substances on school premises or during school activities.
Further, Section 8, which permits random tests on learners, was highlighted. However, Section 8A (14) specifies that no criminal proceedings may be instituted by the school against a learner in whom a conducted test yields a positive result. Mr Mokulubete emphasised that the extreme sanction of arrest should not be the primary means of addressing concerns about cannabis without proof that it poses a direct threat to a child.
He asserted that the Bill permits the use, possession, and cultivation of cannabis, accompanied by penalties for contraventions. While acknowledging that the police are authorised to make arrests in cases of serious contraventions, such as selling cannabis, he underscored the need for national legislation to regulate the commercialisation of cannabis comprehensively.
Regarding the South African National Defence Force's submissions, Mr Mokulubete conveyed their stance that prohibiting members from using cannabis privately while on duty, especially during active duty, would render the Bill unconstitutional. He clarified that the Bill applies uniformly to all citizens, including SANDF members, but it does not permit cannabis use while on duty. The Defense Force's concerns about managing cannabis use were countered with the suggestion that total prohibition is not justified. Instead, regulating use on duty or within SANDF premises is a more reasonable approach.
Addressing misconceptions, Mr Mokulubete clarified that the Bill does allow for the cultivation of cannabis, contrary to certain submissions. He emphasised that the Bill does not prohibit cultivation but restricts it to a number of plants to be determined by the Minister in regulations.
He responded to various submissions, arguing against the inclusion of cannabis social clubs, clarifying that the Bill is limited to individual use, and dismissing claims that the Bill is unconstitutional. He defended the provision that allows adults to obtain cannabis without the exchange of consideration, highlighting the penalties for abuse.
In response to concerns about child protection, Mr Mokulubete stressed that the Bill aims to shield children from cannabis-related harm. He refuted claims that the Bill contradicts itself and asserted that processes under relevant legislation should be followed for child protection investigations.
Lastly, he addressed issues of penalties, explaining that the maximum ten-year imprisonment term is not mandatory but subject to the court's discretion based on individual circumstances. Concerns about the stringent penalty were clarified, emphasising the need for a balanced approach in comparison to substances like alcohol and tobacco.
Mr Mokulubete continued his discourse by addressing concerns related to law enforcement, specifically focusing on the South African Police. He argued that the funds allocated in the proposed Bill might inadvertently encourage continuous unlawful actions by the police against South Africans found in possession of or using cannabis in private for personal reasons. The submission emphasised that fines would be instantly imposed for contraventions of conduct permitted by the Bill, and the police would be authorised to make arrests in specific instances.
Further, it was contended that while a fine of R2 000 might be affordable for most middle and upper-class South Africans, it remains a significant burden for the economically disadvantaged, potentially leading to unjust incarcerations. The submission stressed that the inability to afford fines should not result in unpunished conduct, as the Bill mandates penalties for prohibited actions.
Regarding concerns about children affected by the arrest of their parents for private cannabis use, it was argued that the negative impact on children should not exempt parents from imprisonment. Drawing parallels with other legislation, Mr Mokulubete contended that the court would consider the offender's personal circumstances when imposing penalties, and the Bill already provides for a reduction in the maximum penalty from six to three years.
The submission from the Western Cape contended that Section 4(3) of the Bill criminalises the failure to store cannabis in a secure space inaccessible to a child in public places. However, Mr Mokulubete clarified that this provision is intentional, aligning with the Bill's goal of protecting children from exposure to cannabis. The submission argued against amending this section, emphasising the importance of cannabis regulations to be determined in conjunction with national legislation.
Regarding penalties, the submission from Doctors for Life expressed concerns about the proposed imprisonment term and fine, considering the potential harm to minors from cannabis exposure. In response, Mr Mokulubete highlighted that the penalties were already reduced during the Bill's processing, and the court would determine suitable penalties on a case-by-case basis, considering fines, prison terms, or a combination of both.
The concerns of young people in South Africa were acknowledged, with emphasis on the difficulty of enforcing provisions against second-hand smoke exposure. Mr Mokulubete reiterated that enforcement challenges do not justify leaving prohibited conduct unpunished, and the Bill already includes measures to protect children from exposure to cannabis smoke.
The submission raised issues about public consultation in amending regulations and the proposed amendments to the Road Traffic Act, expressing concerns about potential rights violations of cannabis users. Mr Mokulubete assured that public comments would be considered, even without a specific provision, and clarified that the amendments aim to prevent driving under the influence of cannabis.
In conclusion, Mr Mokulubete thanked the Committee for the opportunity to present and address various submissions related to penalties, law enforcement, child protection, and public consultation, emphasising the Bill's intention to strike a balance between regulating cannabis use and protecting public health and safety.
Additional Notes:
The comments surrounding the Cannabis for Private Purposes Bill have been multifaceted, reflecting diverse perspectives and interests. Stakeholders from various sectors, including advocacy groups, businesses, government entities, and civil society organisations, have engaged in dialogue to provide feedback on the proposed legislation.
One recurring theme in the discussions was the acknowledgement of the Prince judgment as a foundational legal precedent that established the right to privacy for adults in the context of cannabis use. The judgment decriminalised the private use, possession, and cultivation of cannabis by adults in their private dwellings, setting the stage for legislative developments in this area.
In response to the proposed Cannabis for Private Purposes Bill, stakeholders have expressed a range of viewpoints, highlighting both support for and concerns about specific provisions within the legislation. Some stakeholders have welcomed the Bill's emphasis on individual rights and personal autonomy, echoing the principles outlined in the Prince judgment. They argued that adults should have the freedom to make decisions about cannabis use within the privacy of their homes without fear of legal repercussions.
However, other stakeholders have raised questions and critiques regarding certain aspects of the Bill. Concerns have been voiced about issues such as law enforcement practices, regulatory oversight, the protection of vulnerable populations, and the potential impact on public health and safety. Additionally, there have been calls for clarity on matters such as cultivation limits, penalties for non-compliance, and the regulation of commercial cannabis activities.
Despite these varying perspectives, there appears to be a shared recognition of the need for comprehensive and balanced legislation that addresses the complexities of cannabis regulation while upholding constitutional principles and human rights standards. Stakeholders have called for robust public engagement, transparency, and accountability in the legislative process to ensure that the final Bill reflects the interests and concerns of all relevant stakeholders.
Discussion
The Chairperson expressed gratitude to Mr Mokulubete for his comprehensive presentation and acknowledged its length. The Chairperson said Parliament's legal services would address the issues of constitutionality, public comments and tagging. Additionally, the Chairperson invited Mr Mokulubete to provide any further insights or additions concerning the Department's stance on constitutionality and public participation. Members were then encouraged to consider whether they wished to continue deliberations immediately or defer them to the next meeting for further discussion.
Dr Barbara Loots, Parliamentary Legal Advisor, greeted the Chairperson and Committee Members, extending New Year wishes. Acknowledging the comprehensive presentation by the Department, she focused on the tagging issue. Dr Loots emphasised that the Bill's primary purpose was to respond to the Constitutional Court judgment on the decriminalisation of private cannabis use. She clarified that the Bill was not meant to regulate commercialisation, licensing, or environmental cannabis-related issues.
Dr Loots addressed concerns about the Bill's tagging, asserting that it correctly falls under section 75. She highlighted the misunderstanding that led to suggestions for section 76, emphasising that the Bill's focus was on decriminalising cannabis for private use. She pointed out that future legislation might address broader aspects, but the current Bill's scope was limited to private use by adults, as directed by the Constitutional Court. Dr Loots also defended the extensive public consultation process, noting four rounds of submissions in both the Portfolio Committee and the Select Committee.
In conclusion, Dr Loots clarified that the tagging decision should be based on whether there is a substantive impact on a listed item in the schedule triggered by a clause in the Bill. As per her assessment, the Bill stays within the Constitutional Court's parameters, regulating or decriminalising cannabis for private use while focusing on the best interests of the child.
Closing remarks
The Chairperson expressed gratitude to Dr Loots for providing clarity on the tagging issue. Recognising the time constraints and the length of the presentation, the Chairperson proposed deferring further deliberation on the Bill to the next meeting. The Chairperson sought Members' indication on the proposal and, not seeing any objections, assumed it was acceptable.
The Chairperson extended thanks to everyone involved, including the Deputy Minister and legal teams from both the Department and Parliament, for their contributions and for addressing public comments on the bills.
The meeting was adjourned.