Cannabis for Private Purposes Bill: public hearings day 2

Meeting report

Opening remarks
The Chairperson welcomed attendees to the second day of public hearings on the Cannabis for Private Purposes Bill.

The Committee noted an apology from Adv S Swart (ACDP), who was present but who would have to leave later for other meetings. He would try to return to the hearings when possible.

The Committee adjourned for a short tea break.

Upon the Committee’s return, neither of the organisations which were scheduled to make the first submissions were present. After some confusion, it was arranged for the Cannabis Industry Development Association of Southern Africa (CIDASA) to make its submission. The Chairperson apologised for “ambushing” CIDASA and thanked its representatives for being prepared.

Oral submission: CIDASA
Dr Anita Venter, Researcher, Centre for Development Support, University of the Free State, made the submission on behalf of CIDASA.

CIDASA rejected the Bill. Its central objection was that the Bill had an overly narrow conception of the “private purposes” for which cannabis could be used. The Bill’s focus on recreational and medicinal use neglected cannabis’s environmental and industrial value. In particular, the Bill did not consider cannabis’s:
- Carbon-sequestrating properties and other ecological benefits; and
- Uses in indigenous building technologies, especially in the informal sector.

On the latter point, Dr Venter said that the use of cannabis in building did not require government regulation, but did require the cultivation of more cannabis than would be permitted under the Bill.

CIDASA thus held that the Bill violated the constitutional rights to environmental protection, access to adequate housing, and freedom of expression. It also pointed to “over-regulation,” and said that the application of medicinal regulations to cannabis would prevent innovation and undermine indigenous rights.

(See presentation)

Discussion

Dr W Newhoudt-Druchen (ANC) asked whether CIDASA had ever presented to another parliamentary committee, at either the national or the provincial level.

Adv Zwelonke Mamba responded on behalf of CIDASA. He said that, to his knowledge, this submission was CIDASA’s first submission on a public platform.

Adv Swart thanked CIDASA for its submission and especially for its focus on hemp. Had CIDASA seen the National Cannabis Master Plan and, if it had, what were its views? He was particularly interested in its views on the hemp regulations. Hemp contained cannabidiol (CBD), but contained very low levels of tetrahydrocannabinol (THC) and was not psychoactive. Currently, the Medicines and Related Substances Act, and the regulations of the Department of Agriculture, Land Reform and Rural Development (DALRRD), set the THC threshold for hemp at 0.2% THC. How did that definition of hemp compare internationally, and how would it be applicable in South Africa, given South Africa’s unique climate? Was the THC threshold too low? 

Adv Swart said that he had found CIDASA’s points about the built environment and the possible uses of cannabis very helpful. However, the current Bill clearly did not deal with the commercialisation of cannabis – whether hemp or otherwise. That was an issue that the Committee had to grapple with.

Adv Swart asked whether CIDASA rejected the Bill in its entirety, as many other speakers at the public hearings had. If not, did it have any suggestions for possible amendments – especially relating to hemp – that might be used to improve the Bill? He would accept a written response, if that was preferable.

Adv Mamba said that CIDASA supported cannabis-related industrial development in South Africa and Southern Africa. CIDASA wanted to see certain additions made to the Bill, especially with regard to indigenous people and indigenous knowledge. In the current era, cannabis was “the new gold.” South Africans were lucky to have good land and a good climate. However, in South Africa, indigenous people and indigenous knowledge systems had been “put into disrepute.” Indigenous people had used cannabis for a very long time – for medicinal, recreational, and industrial purposes – but the Bill did not consider indigenous knowledge systems. The Bill was derived from Western law. Despite the Constitution’s recognition of traditional leaders, traditional organisations, and civil society organisations, the Bill neglected traditional medicines, traditional structures, and traditional people. 

Adv Mamba said that CIDASA wanted the Medicines Act to be amended to define and recognise traditional health practitioners, so they could enjoy their profession and exercise their rights. 70% of people in South Africa used traditional medicines, and cannabis was a part of that. The Traditional Health Practitioners Act recognised that the traditional healers were the custodians of traditional medicinal plants, but traditional healers were not able to exercise fully the rights that they had been granted after 1994. Traditional healing remained stigmatised.  

He said that education was another factor that was retarding the South African cannabis industry. South Africans were not properly educated about the potential socio-economic benefits of cannabis. They were not aware that, apart from its recreational and medicinal uses, cannabis had industrial uses with economic potential. Discrimination was a problem in South Africa, despite the Constitution’s provisions for equality before the law. The Department of Basic Education (DBE) was a part of the Cannabis Master Plan, and CIDASA would like to see DBE cooperate more actively with the Department of Justice and Constitutional Development (DOJCD) to establish programmes for education and awareness. Other stakeholders should be the Department of Social Development (DSD), the national Department of Health (NDOH), and the departments that dealt with the economy – all these areas were affected by cannabis.

He said that the Bill did not allow for research, development, and innovation around the uses of cannabis. The Bill should allow individuals to freely use the cannabis plant to make a livelihood, alleviate poverty, and create jobs.

After Adv Mamba had been speaking for about ten minutes, Adv Swart reminded him that he had asked specific questions of CIDASA. He was concerned that the Committee was short on time.

The Chairperson asked Adv Mamba to focus on answering Adv Swart’s questions.

On the THC threshold, Adv Mamba said that the South African people were not aware of what “THC” meant. Attempts to control the cannabis plant belonged to “Western ideology” – African indigenous knowledge did not include knowledge of how to limit the plants in the ways required by the regulations. He thought that the 0.2% THC threshold should be scrapped, and proper research on the South African climate should be conducted. From his research, he thought that the 0.2% threshold was incompatible with the climate. Once the African sun shone on the plant – even if the plant was grown from hemp seeds – the plant automatically created THC. The plant should be regulated holistically and in accordance with the local environment.

The Chairperson asked Adv Swart whether his questions had been answered.

Adv Swart said that CIDASA could provide further information in writing if necessary. 

The Chairperson said that the Bill could not cover everything. However, he thought it was the beginning of a process in which other parliamentary committees would also consider the cannabis issue and the Cannabis Master Plan. He encouraged interested civil society organisations to approach and engage government departments, parliamentary committees, and even other government bodies. For example, the CIDASA submission would be interesting for the Portfolio Committee on Public Works and Infrastructure and the Portfolio Committee on Sports, Arts and Culture. These public hearings were a step forward, and they were the start of a process that should be educational for Members of Parliament (MPs) and for the wider society. He thanked CIDASA for its “enlightening” submission.

Oral submission: Cannabis Action Group

Mr André du Plessis of the Cannabis Action Group (CAG) made a submission on behalf of the CAG. He thanked the Parliamentary Monitoring Group for its hard work over the last 20 years in informing the public about parliamentary proceedings, especially insofar they pertained to cannabis. 

CAG opposed the Bill, the Cannabis Master Plan, and the related legislative amendments that had already been made. It would take its opposition beyond the National Assembly to the National Council of Provinces and, if necessary, to the courts. The Bill was unconstitutional, in terms of Sections 22 and 36 of the Constitution, and sought to “re-criminalise” existing cannabis-related offences.

Mr Du Plessis discussed the research and policymaking process that had culminated in the Cannabis Master Plan and current Bill. He said that cannabis research had cost R1 billion since 1999, with little demonstrable benefit to policymaking. The Master Plan was also in direct opposition to the current Bill.

Definitions in the Bill

Cannabis had previously been defined relatively straightforwardly in the Medicines Act and the Drugs and Drug Trafficking Act. Since the Prince judgment in the Constitutional Court, cannabis-related definitions in the schedules to those acts had multiplied, without a scientific basis and without public consultation. The current situation was “unscientific definition insanity” – “complete and utter nonsense.” A workable definition of cannabis could be found on Google.

The Medicines Act clearly provided that NDOH and the South African Health Products Regulatory Authority (SAHPRA) were to regulate medicinal compounds. Thus, for example, SAHPRA registered the COVID-19 vaccines, which were compounds. It did not legislate, schedule, and register each molecule of the compounds – which was what it proposed to do in respect of cannabis.  

Recommendations

CAG recommended that government should:
- Remove cannabis and all related definitions from the Medicines Act and Drugs Act; and
- Engage in public participation to draft a new Bill with correct definitions.

(See presentation)

Discussion

Dr Newhoudt-Druchen said that she now had many questions for DOJCD. She would not ask those questions in the current meeting, but she thought that the Committee certainly had to speak to the departments, and especially to DOJCD, again.

The Chairperson replied that the Committee would have an opportunity to do so immediately after the public hearings.

Oral submission: Karoo Bioscience
Mr Doron Isaacs, Chief Executive Officer, Karoo Bioscience, made a submission on behalf of Karoo Bioscience. He said that the company had also made a written submission under its prior name, CannaKaroo.

Karoo Bioscience held that the Bill:
- Was too narrow, and missed the opportunity to regulate cannabis trade;
- Violated Section 22 of the Constitution, which concerned freedom of occupation;
- Discriminated irrationally among people on the basis of their access to land; and
- Undermined its own laudable objectives by taking a punitive approach to non-compliance.

In support of the first point, Mr Isaacs discussed the economic, criminal justice, and public health benefits of legalising cannabis trade. Cannabis criminalisation had cost government R3.5 billion in 2014-15. Moreover, in his own Master’s dissertation, he had found that legalising cannabis trade could increase tax revenues by around R4 billion annually – the same estimate that Mr Tito Mboweni, former Minister of Finance, had provided in a Tweet.

Recommended amendments

Karoo Bioscience recommended that the Committee should amend the Bill to:
- Remove the outright prohibitions on and criminalisation of cannabis;
- Revise the severe criminal penalties;
- Remedy the irrationality of the Bill (for example, the limitations on buying seeds); and
- Remedy the irrational distinction implied between cannabis and alcohol and tobacco.

(See presentation)

Discussion
The Chairperson congratulated Mr Isaacs on earning his Master’s degree. Members looked forward to reading his dissertation, which was relevant to the Cannabis Master Plan. 

Dr Newhoudt-Druchen asked whether Karoo Bioscience held that the Bill should be entirely abandoned or entirely overhauled in order to deal with other issues, like cannabis trade.

Mr Isaacs replied that he was not “condemning” the Bill, because he could see that government had “good intentions.” However, the Bill hardly constituted progress. It did not take South Africa any further than it had already been taken by the Prince judgment, which had decriminalised private cultivation and consumption. Thus there was no urgent need to pass the Bill. Government had already missed the two-year deadline that the Constitutional Court had suggested for the passage of such legislation. He held that the Bill should be substantially rewritten, although Parliament could retain the good parts of the current draft, such as the expungement of criminal records. The Bill should not just focus on private cannabis use, but should also seek to develop a safe, regulated domestic cannabis industry which could help serve the country’s economic, public health, and criminal justice priorities.

Oral submission: Rastafari Community of South Africa
Mr Ras Eshe Sellassie, also known as Lebogang Simelanen, made a submission on behalf of the Rastafari Community of South Africa (RCSA).

RCSA opposed the Bill, arguing that it violated 14 sections of the South African Bill of Rights and seven articles of the United Nations Universal Declaration of Human Rights. In particular, RCSA objected to the provisions which placed limits on cannabis cultivation, possession, consumption, and exchange, and which prohibited the same among children.

Recommendations

RCSA supported the “complete liberation of cannabis,” for reasons Mr Sellassie explained. This would entail:
- Complete legalisation of cannabis, with no criminalisation or legal restrictions; and
- Removing cannabis from the drugs schedules.

Mr Sellassie said that the Rastafari community should justly receive land, funding, and – for those who had been mistreated, brutalised, or wrongfully convicted – compensation and a commission of enquiry.

(See presentation)

Discussion
Dr Newhoudt-Druchen asked whether RCSA had ever presented to another parliamentary committee, to a government department, or to the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL Rights Commission).

Mr Sellassie replied that RCSA had engaged with the CRL Rights Commission. The Commission had sent various recommendations, and RCSA had sent numerous responses. Unfortunately, however, it had not received the appropriate response or recognition from the Commission or from the government. 

Dr Newhoudt-Druchen noted that Mr Sellassie had mentioned that cannabis use could reduce gender-based violence. Could he explain this further? South Africa did have a high rate of gender-based violence.

Mr Sellassie replied that, in his experience, whenever he was frustrated, consuming cannabis brought “calm” and helped him to meditate on the situation he was facing.

Dr Newhoudt-Druchen asked why Mr Sellassie had said during the submission that there was a need for more healthcare centres. 

Mr Sellassie said that RCSA’s proposal was for more healthcare centres which administered cannabis-based treatments. Science had proven that cannabis was a healing plant. Cannabis could heal almost anything. It had psychological benefits which helped the brain and nervous system, as well as other benefits such as boosting the immune system. Once the government and political leaders accepted this, there would be less need to administer harmful pharmaceutical drugs, which in turn would reduce the amount of money that government paid to pharmaceutical companies. Cannabis-focused healthcare centres could help take care of both the youth and the elderly, which were the groups that most needed effective healthcare.

Mr Sellassie said that the healthcare centres would also be educational centres, helping communities to educate the youth about how to properly use and consume cannabis. The Rastafari community was aware that there were improper uses of cannabis, which created the false impression that there was something wrong with cannabis itself.

The Chairperson asked what recommendations the CRL Rights Commission had sent RCSA.

Mr Sellassie replied that the recommendations had come from various departments, including NDOH, DALRRD, and the Department of Police. The most significant had been recommendations about how the Rastafari community should use cannabis. The government had recommended that each individual should not possess more than 100g of cannabis. But for the Rastafari that was not practical. They could use 500g in a week – it depended on the size of their family or congregation. It had also been recommended that the government should align itself with the Rastafarian communities to try to reduce the brutality against them – that had not happened.

The Chairperson asked for more detail about the 100g recommendation. Had it referred to 100g per day, or per week, for example?

Mr Sellassie replied that it had been a recommendation for the maximum amount that an individual should be in possession of at any given time. RCSA had been told that individuals should not be found to be in the possession of more than 100g of cannabis.

Dr Newhoudt-Druchen said that one of the submissions had mentioned that Rastafari children were kicked out of school for their religious and cultural background – for example, for their long hair. That meant that they did not receive a full education. She was very concerned about this kind of discrimination against children, and it would be important to raise the issue with DBE or a portfolio committee. Had RCSA done so?

Mr Sellassie confirmed that such discrimination still occurred, not only in South Africa but also in other African countries. A day or two ago he had seen pictures on social media of someone who had had his hair practically chopped off at school. It was time for government to tolerate the Rastafari community as a spiritual community which taught responsibility, respect, and discipline – those values were essentially what the Rastafari faith was based on.

The Chairperson said that the other part of Dr Newhoudt-Druchen’s question had been about whether RCSA had ever made a presentation to another portfolio committee, whether in the national or provincial legislatures. 

Mr Sellassie replied that it had not yet done so.

The Chairperson asked whether this was therefore RCSA’s first meeting with a portfolio committee.

Mr Sellassie replied that it was. However, RCSA had made written submissions in response to the CRL Rights Commission’s recommendations.

The Committee adjourned for a five-minute break.

Oral submission: Fields of Green for All
Ms Myrtle Clarke, Managing Director, Fields of Green for All, made a submission on behalf of Fields of Green for All.

Fields of Green rejected the Bill outright. It did not properly constitute a decriminalisation of cannabis, and it imposed unacceptable prohibitions on cannabis. 

Among Fields of Green’s concerns about the current Bill and cannabis policy were:
- A lack of credible evidence;
- Neglect of a harm reduction approach;
- The involvement of the South African Police Service (SAPS) in enforcement; and
- Neglect of structural considerations within the cannabis economy.

On the last point, Ms Clarke said that cannabis policy should not focus solely on rural cannabis farmers in the Eastern Cape – for example, attention also had to be given to informal traders and township economies. Moreover, there should also be no monopoly or oligopoly controlled by the wealthy or by “outsiders.”

National Cannabis Master Plan

Fields of Green had already submitted its comments on the Cannabis Master Plan. The Bill and the Master Plan contradicted each other, and Fields for Green insisted that legislators should “go back to the drawing board.”

Fields of Green for All manifesto

Ms Clarke directed Members to Fields of Green’s manifesto for policy reform. It had not been completed in time for the written submissions deadline, but she asked the Committee to consider it as an addendum. The manifesto set out an evidence-based approach that the government could use to help formulate sensible, constitutionally sound cannabis policy, and she outlined its various sections.

The manifesto also considered private dagga clubs, which Fields of Green saw as a means to increasing inclusivity and social equity in the existing cannabis sector. Fields of Green had been researching and developing recommended standards for such clubs. She alerted Members to the important Haze Club case currently at the courts.

Ms Clarke also discussed various problems facing the cannabis community, including stigmatisation, mistreatment in the workplace and by police, and the use of cannabis testing in custody battles. She also said that civil society had to bear the financial burden of cannabis-related litigation. The Bill in its current form would not alleviate these problems.

(See presentation)

Discussion
When the Chairperson had asked Ms Clarke to wrap up her submission, a member of the public had objected out loud.

The Chairperson asked members of the public not to interject or attempt to “co-chair” the meeting. All organisations had been given 20 minutes to make their submissions, and he expected them to comply with the time limits.

Dr Newhoudt-Druchen expressed her condolences to Ms Clarke on the death of her partner.

Dr Newhoudt-Druchen asked whether Fields of Green had ever presented to another parliamentary committee. Specifically, had it ever presented to the Portfolio Committee on Police, for example about the individuals it was providing legal assistance to?

Ms Clarke replied that she had made an oral submission to the Standing Committee on Appropriations in November 2019. Her submission had argued that government departments should direct their unspent budget towards cannabis policy and legislative reform. She had never presented to the Department of Police, although it was one of the eight departments that she had sued in 2011. She had tried repeatedly to contact the police, but had never received any reply. She had also tried repeatedly to contact the police union, which had been calling for the decriminalisation of dagga since 1996.

Dr Newhoudt-Druchen asked whether Fields of Green had only provided input on the Cannabis Master Plan in a written submission, or whether it had also made an oral presentation. And what were the central points of its submission on the Master Plan?

Ms Clarke replied that Fields of Green had sent a written submission on the Cannabis Master Plan. She would send a copy to the Committee. Its main issues with the Master Plan were the continued criminalisation of cannabis and its reliance on policing. If cannabis legislation required “plant counting,” was it SAPS who were going to enter people’s homes and count their cannabis plants? However, the written submission had also highlighted many elements of the Master Plan that Fields of Green did support. It certainly welcomed that there was such a plan. However, it did not welcome that there were two incompatible discussions happening – one about the Bill, and another about the Master Plan. Fields of Green wanted cannabis policymaking to be more “cohesive.”

Ms Clarke added that there were 22 government departments that should be involved in cannabis policy to different degrees. So far, however, only four or five departments were visibly involved. She especially wanted to see DSD engaging. Cannabis policy affected children and other social development issues, and DSD had protested outside her court hearings in Pretoria in 2017.

Dr Newhoudt-Druchen asked for more information about the dagga commission that Fields of Green thought should be established. For example, who should be seated on such a commission?

Ms Clarke replied that the cannabis community joked amongst themselves that they would like the dagga commission to be another Zondo Commission, because Deputy Chief Justice Raymond Zondo had written the landmark Prince judgment. The commission had to be established as a body that existed to hear evidence. It would have to include all the civil society and religious organisations that had an interest in the cannabis issue; the government departments, and especially the eight departments that she had sued in 2011; and Fields of Green’s affiliate companies. Business had to be represented as well. As her submission had mentioned, there was a huge disjuncture between ordinary people, who were being arrested on the street for cannabis offences, and businesses, which were being given permits and licenses to cultivate cannabis. The licensing was certainly a “grey area” – dozens of companies had now claimed that they were the first or only recipients of certain licenses. What were hemp research permits? Who was issuing them? When the research was completed, what happened to the dagga that was used in the research? Unfortunately, the research and development dagga seemed to be finding its way onto the street, instead of being burnt. 

Ms Clarke said that the Fields of Green manifesto outlined a proposal for a cannabis ombudsman. The ombudsman would be a “go-between” between SAPS and people on the street, and would determine whether harm had been committed in certain situations. Cannabis offences – possession, use, and even dealing offences – were largely victimless crimes. The fifth section of the manifesto discussed the composition of the office of the ombudsman. She thought that the proposal for a dagga commission was important, and Fields of Green was available to advise on who should be involved in its establishment. As she had mentioned, civil society did not want to bear the burden – and especially the cost – of continued litigation on cannabis. The lawsuit laid in 2011 had cost Fields of Green R5 million, even with pro bono legal representation from Schindlers Attorneys and Adv Don Mahon. Instead of going back to court, civil society and government should “sit round the table” together.

Dr Newhoudt-Druchen asked what private dagga clubs were.

Ms Clarke replied that private dagga clubs were private associations of “like-minded people” with strict membership requirements – like golf clubs. They were formed so that their members could cultivate and use cannabis collectively. Fields of Green would also like private dagga clubs to be able to engage in cannabis trade, although that was obviously not permitted by current legislation. Ideally, each club would be a “closed-loop system” – each club would cultivate, harvest, and trade cannabis solely within its own membership. For example, the growers would be members of the club – and they might also be growing on land owned by the club. The activity of such clubs was within the ambit of the Prince judgment but would not be permitted by the current Bill. The Haze Club, whose court case she had mentioned earlier, was seeking a declaratory order from the Constitutional Court specifying whether private dagga clubs were allowed in South Africa. The defendants in that case had to bear the costs of the declaratory order from their own pockets. That was wrong – how long could civil society keep fundraising for litigation of this kind?

Dr Newhoudt-Druchen asked about the 300 people that Fields of Green was providing legal assistance to following their arrests. Were any of those people school children? As she had said in yesterday’s meeting, schools sometimes allowed SAPS, with sniffer dogs, to come into the school and search for dagga in the students’ possession. Did people contact Fields of Green for help in such situations?

Ms Clarke replied that Fields of Green assisted 300 people who had been arrested after the Prince judgement in 2018. Of course, it could not purport to reach all South Africans in a similar situation. It was constrained by its limited resources, and the 300 people were those whose cases had come across the desks of Fields of Green’s “Stop the Cops” and “Join the Queue” initiatives. The 300 people came from all walks of life – they were young and old, unemployed and wealthy, residents of townships and of gated estates. That was why the organisation was called Fields of Green for All. However, none of them were schoolchildren – they were all adults.

Ms Clarke said that Fields of Green disapproved of children taking dagga to school. It implored all school children to leave any cannabis at home, and indeed not to use cannabis until they were 18. If they wanted to use cannabis for a medical condition, they should do so only with the permission of their parents – not of government or the police. However, many, many children in South Africa – including those from Rastafari or traditional families – were exposed to cannabis use at home, whether or not their families allowed them to use cannabis themselves. It was unconstitutional for schools to test children for cannabis. If cannabis was found on a student’s person, his parents should be called in, and the matter – and any disciplinary measures – should be dealt with between the school and the parents. As the Centre for Child Law had made clear in its submission yesterday, cannabis criminalisation in respect of children was no longer permissible. Incarceration was severely harmful to children.

Dr Newhoudt-Druchen asked Ms Clarke to send the Committee secretariat all the additional resources and information that she had mentioned during her submission. She would like to read those resources. She was especially interested in the history, and in why cannabis prohibition had occurred during the apartheid era. The country was still struggling with the laws of the apartheid regime, which resulted in incarcerating people for cannabis offences and so on.

Ms Clarke replied that she had been a bit flustered that morning because her office had not had electricity and she had had to relocate, so her submission had not included everything. She would send the presentation and other documents to the Committee secretariat, including the Fields of Green manifesto, which was 108 pages long and contained 211 footnotes and references.

Ms Clarke thanked Dr Newhoudt-Druchen for her interest in the background history and context. Fields of Green had made several video presentations about the history of dagga in South Africa, and it was very important for citizens to know the foundations of “the last apartheid law.” In 1924, Jan Smuts had written to the League of Nations, which at the time had been drafting prohibitions on opium, and the discussion had turned to dagga. It was then that cannabis first became subject to international law. As early as 1878, cannabis use had been criminalised in Natal – the first such law anywhere in the world. In Natal, a British medical doctor had said that when Indian indentured labourers smoked their bhang, it rendered them useless for the job that they had been brought to the colony to do. Those labourers were slaves, and the bhang was their sacrament. Religious oppression had marked South African cannabis policy from the beginning.  

Ms Clarke said that all the resources she had mentioned could also be found on Fields of Green’s website, which hosted 11 years’ worth of blogs. Fields of Green also had over 160 000 followers on social media and a very active Youtube channel. It had livestreamed her lawsuit – “the trial of the plant” – after fighting for the right to do so in court, and thereby delaying the proceedings by three days. That case had subsequently been won in the high court and the Supreme Court of Appeal, and she was just waiting for the costs order to be finalised. Fields of Green hoped that future litigation could be avoided and that it would not have to livestream from Pretoria High Court again. The public hearings were very exciting – Fields of Green had been working hard with many people across the country, and had “never thought that this day would come.” 

The Chairperson said that the Committee would await and consider the further information that Ms Clarke had promised to send in writing.

Oral submission: Black Star Liner
The Chairperson of Black Star Liner made a submission on behalf of the organization. He introduced Black Star Liner as a governance structure for the Rastafari community living in the former homeland of QwaQwa in the Free State.

Black Star Liner rejected the Bill in its entirety, and called for it to be scrapped.

The Chairperson interrupted briefly to ask members of the public to desist from using offensive language on the digital platform’s chat function.

Problems with the Bill

Black Star Liner held that the Bill was “an emanation of Roman-Dutch law,” and did not properly express customary law as required by the Prince judgment. It took issue with existing legislation such as the Drugs Act, which was a “foreign” law that had been imposed on South Africa because of American influence in the apartheid era. Any bill drafted within that framework would perpetuate the current contradictions between the provisions of law and the realities of South African society.

The Chairperson of Black Star Liner then discussed various ways in which the Bill was “alien” to the experience of indigenous communities.

The Bill practiced “gender discrimination” in respect of male and female cannabis plants. The roots of this, like the roots of gender discrimination against humans, were an apartheid mentality and apartheid indoctrination. The focus of capitalists on those parts of the plant which could yield the most profit had led to a “divide-and-rule” approach to cannabis.

Most South Africans lived in the former homelands and were governed by customary law, which was the basis of cannabis practices in South Africa. However, the Bill assumed that cannabis users were a homogenous group, with a uniform relationship to science and to the law. For example, the Bill defined an adult as someone who was 18 years or older. In customary law, however, initiation was the criterion of adulthood, and Rastafari communities might also consider outsiders to be children in a certain sense. 

The Bill’s “private use” framework was typical of a capitalist worldview in which private ownership took precedence over community and collective ownership. In the Rastafari community and other communities, persons were “cultural persons,” who derived their identity from their communities and who co-produced and shared resources.

Moreover, as the Prince judgment acknowledged and the Bill did not, the use of cannabis by the Rastafari community was cultural, not private. Cannabis was a sacred blessing for the Rastafari, and was therefore used, for example, at social celebrations. The consumption offences in the Bill thus showed prejudice against the Rastafari community. If the Bill was passed, cultural communities should be exempted, so that their rituals were not criminalised.

The Bill’s requirement that cannabis had to be used and cultivated in private was also unrealistic – both in the homelands, which were still ruled by kings and chiefs, and in urban areas, where most individuals lived in crowded areas. The Bill limited the exercise of citizens’ rights, and only advantaged those who owned large amounts of land that could be used for cultivation.

The Bill’s attitude to children was unrealistic. Most Rastafari lived with their children and did not lock their cannabis away in cabinets. Their children knew, from customary education, that cannabis was only for the use of adults. The Bill would undermine the authority of their elders and, again, would criminalise customary practices.

The Bill allowed for the expungement of criminal records, but only in part and with the unconstitutional proviso that the expungement could be revoked. This meant that individuals would be “free but with a gun to our heads.” All cannabis-related criminal records should be fully and permanently expunged. 

Recommendations

Black Star Liner called for cannabis to be regulated separately in its commercial and customary uses. Legislation for customary cannabis use should be drafted by Parliament in consultation with religious and indigenous communities, and should be devoted to protecting indigenous lifestyles.

Legislation for the commercialisation of cannabis should seek to curtail monopolisation and abuse by large companies. Those large companies would compete aggressively to dominate the cannabis sector, at the expense of the communities who had borne the brunt of criminalisation in the past.

Importantly, there had to be a clear distinction between informal and formal trade in cannabis, in order to protect informal traders. More specifically, legislation should:
- Distinguish formal (commercial) traders from informal traders on the basis of an income threshold;
- Require formal traders to register, apply for permits, pay tax, and meet safety standards; and
- Exempt churches from the above framework.  

Discussion

Dr Newhoudt-Druchen asked whether Black Star Liner had had the opportunity to participate in, or submit input during, the drafting of the Cannabis Master Plan.

The Chairperson of Black Star Liner replied that Black Star Liner had not been afforded that opportunity, though it had read about the Master Plan in the media and knew of others who had participated.

The Chairperson thanked Black Star Liner for a submission which he thought would “enrich” the Committee’s process. Before the Committee began its clause-by-clause deliberations, DOJCD would respond on all issues raised during the public hearings. Public hearings were an important part of the legislative process in South Africa, and the Committee took them very seriously.

Prof C Msimang (IFP) said that he had a question which he had intended to ask Fields of Green for All, but which could also be relevant to the Black Star Liner submission. Thus far, one central concern raised in the public submissions was the Bill’s narrow focus. He wanted to provide some background to this narrow focus, by discussing a Private Member’s Bill that had been initiated in the Fourth Parliament. An IFP MP, Mr Mario Oriani-Ambrosini, had been diagnosed suddenly with stage IV cancer. He had been shocked – why had he not been diagnosed earlier? He had not been satisfied with his doctors’ explanations, and he had researched cancer treatments. Unfortunately, his cancer became terminal, and he died. Nevertheless, before his death, he had drafted the Medical Innovation Bill, which sought to make cannabis accessible, especially as a medical treatment. The Medical Innovation Bill had also had a narrow focus. Although Mr Oriani-Ambrosini had learnt how cannabis could help cancer patients, he had not known about the many other uses of cannabis, which the Committee was now hearing about through these public submissions.

Prof Msimang said that the Committee had heard that cannabis could play a role in industry, and that it already played a role in religious and traditional customs and medicines. The previous day, the Congress of South African Trade Unions (COSATU) submission had said that cannabis could even help reduce unemployment. This was clearly a useful plant, and there should be legislation which enabled it to be used for all these different purposes. He therefore wanted to ask Fields of Green for All and Black Star Liner which of two possible approaches was preferable, given the wide range of uses for cannabis. Should Parliament process the Cannabis for Private Purposes Bill, and then draft a further, broader general statute on cannabis? Or did the organisations feel that it would be possible to amend the current Bill to make it sufficiently broad? If they did, the Committee would debate that possibility at a later stage.

Ms Clarke replied that she could not say whether the Bill would ultimately take into account all of the issues that had been raised during the public hearings – Parliament, not civil society, would decide that. However, civil society would be monitoring the progress of the Bill very closely, and would carefully scrutinise its constitutionality. Fortunately, the South African Constitution emphasised human rights. If the Bill in its final form did not pass constitutional muster, Fields of Green for All might take it to court. But, as she had mentioned earlier, litigation was a heavy burden for civil society to carry, especially financially.

Ms Clarke said that, over the years – since the days of Mr Oriani-Ambrosini’s bill – government had presented various proposals on the cannabis issue, none of which had “come up to scratch.” Mr Oriani-Ambrosini had been her friend, and she had supported him in his last days. She appreciated his efforts, but his Private Member’s Bill had been “dead in the water.” However, this proved that it was not feasible for cannabis laws and regulations to have an exclusive sectoral focus. Government and the Committee had to “take a step back” and consider all the various uses of cannabis. Personally, she used cannabis every day, mainly for recreational purposes – to stimulate her creativity and focus. She did not use cannabis for medicinal or industrial uses, but she still grew more plants than the Bill allowed, and the law considered her a criminal. “Good people disobey bad laws,” she concluded.

The Chairperson of Black Star Liner said that to pass the current Bill would be to “open a can of worms” for his community. He could illustrate this by reference to his own experience. As a Rasta, he grew cannabis in his yard, and his teenaged children understood that they were not supposed to use it. His children went to school and he had fought against their expulsion. It had been a long fight, but his family had now developed a sense of security, safety, and community. For his family to accept the Bill would be “suicidal.” The Bill prescribed new forms of cannabis offences, and reversed what the Prince judgment had achieved. It was “a slap in the face” for the one million Rastafari in South Africa. It would not improve their circumstances in any way, and in fact to endorse the Bill would be to agree to a new form of apartheid – it would be to jump out of the frying pan and into the fire.

Black Star Liner could “work with” the Bill insofar as the Bill was a Roman-Dutch law with “good intentions,” which aimed solely to regulate the commercial uses of cannabis. Insofar as the Bill related to Rastafari customary practices, however, there had been no “reputable” consultation. It was difficult to believe that government had not known, while drafting the Bill, which communities had an interest in the Bill, and the extent to which their lifestyles would be restricted by its current provisions. Who was not aware of the relationship of the Rastafari community to cannabis, especially given its prominent activism in that area? The community felt that it was being marginalised by Parliament. Black Star Liner therefore fully rejected the Bill, because it could not endorse legislation that would enable the persecution of its own community.

The Chairperson said that it would be interesting to later pose Prof Msimang’s question to the other organisations who submitted.

To Black Liner, the Chairperson said it was important to explain that Parliament had not drafted the Bill. The Bill was a proposal to Parliament by the executive. Once it had received the Bill, the first thing the Committee had done was solicit public comments. After the public hearings were finished and DOJCD had responded, Parliament – through the Committee – would begin interacting with the Bill itself.

Oral submission: the Growers Club
Mr Mike Manser, a founding member of Holy Basil Growers Club, opened the Growers Club’s oral submission.

Proposed amendments

Adv Sarel Bekker said that, in contrast to some of the other speakers, the Growers Club’s believed that the Bill presented a “workable” model, and indeed it believed that its own operations were fully compliant with the Bill.  

The Grower’s Club thought that clause 6(1)(a)-(b) of the Bill correctly left room for individuals to recruit the assistance of others in cultivating cannabis for their private use. To make this explicit, it suggested that the definition of “deal in” should explicitly exclude a situation in which a consenting adult gave consideration to another person or entity for assistance in cultivating the cannabis plants which the Bill permitted him to possess, provided that the cultivation was done in the presence and under the supervision of the person or his representative.

Additionally, Adv Bekker said that the Grower’s Club proposed allowing individuals to import genetic material, to enhance the quality of the cannabis planted in South Africa. To this end, it proposed inserting a provision specifying that clause 2(3)(a) of the Bill did not prohibit the exchange of consideration being provided to an exporter by an adult who imported cannabis plant seeds.

The Grower’s Club model

Mr Mauritz Grobler, Chairperson of the Growers Club, outlined the Club’s model and its applicability to the objectives of the Cannabis Master Plan.

He said that the Growers Club coordinated the efforts of its members to cultivate high-quality organic cannabis. The Club effectively pooled the cultivation quotas imposed on individuals by the Bill. The growers themselves provided “cultivation services” – that is, grew the cannabis consumed by members – in exchange for 50% of members’ contributions to the harvest.

(See presentation)

Discussion
The Chairperson had tried several times to ask Mr Grobler to wrap up the submission, which had exceeded the allotted time. He admonished Mr Grobler that all attendees should listen to him and that all speakers had been given the same amount of time.

Mr Grobler apologised. He had not heard the Chairperson’s interruptions because his sound had been turned off.

Dr Newhoudt-Druchen asked where the Growers Club’s members came from. Did it have any members from rural areas?

Mr Grobler replied that the Growers Club had members across the country – in Mpondoland, Sandton, Cape Town, KwaZulu-Natal, the rural Northern Cape, and so on. The Club’s membership and reach were currently limited, due to the current legal uncertainties around cannabis, but it had created a platform for a community of all races and all backgrounds.

Dr Newhoudt-Druchen asked why South Africa needed to import cannabis seeds from overseas, given that cannabis had been grown inside the country for a very long time.

Mr Grobler replied that there were different chemotypes of the cannabis plant, with different chemical compositions. Cannabis enthusiasts sought out different chemotypes, because each combination of chemicals provided a unique experience when the cannabis was consumed. Internationally, there were certain extremely popular high-volume strains, which had been bred by mixing different genetics from across the world. One example was Durban Poison, which was a world-renowned strain – its effects were often compared to a shot of espresso. Durban Poison was a landrace strain that grew in South Africa. However, the Durban Poison available on foreign markets was a slightly modified version of the South African strain, inbred with other strains to stabilise it for the greenhouse environment. So even national cannabis genetics had particular histories which one had to be aware of.

Mr Grobler said that the Growers Club sought to provide its members access to a wide variety of chemotypes. To meet that demand, it needed access to foreign genetics, which it could cross-breed with other genetics to create the next generation of industrial or commercial cannabis strains. In sum, the consumers wanted more than just Coke Zero – they wanted access to Fanta Orange, Grapetiser, and a range of other flavours and experiences. It was wrong to assume that only South African cannabis could provide a unique experience when consumed, and for that reason the Club’s members demanded access to foreign genetics.

The Chairperson welcomed back Adv Swart, who had returned from the Chief Whips’ Forum. 

Adv Swart said that he would later go through the submissions that he had missed during his absence. He had already read the Fields of Green for All manifesto, which was quite a substantial document and which he encouraged other Members to read. 

Adv Swart asked for Adv Bekker’s view about the implementation of the current Bill. The Committee was acutely aware of the pressures on the criminal justice system. The courts were backlogged, and the police were unable to adequately investigate murder, corruption, and gender-based violence. It seemed that enforcing the details of the Bill – such as those restricting the number of plants that an individual could cultivate – might be very difficult. It might require considerable police resources and place a lot of pressure on the criminal justice sector. Did Adv Bekker agree?

Adv Bekker conveyed his own apology to the Chairperson. There were five people in the room with the Growers Club representatives, and none of them had heard the Chairperson attempting to hold Mr Grobler to the time limits.

To Mr Swart’s question, Adv Bekker said that the Growers Club hoped that its model could assist with implementing the Bill, not by helping the police to arrest people, but by simplifying the Bill’s enforcement. The Club focused on cultivating high-quality organic cannabis so that the grower, wherever he was situated, could reap the benefits of what he produced. That is, the Club used its access to high-value markets to reach higher prices and higher profits, and passed on the benefits to the farmers, so that they could also share in the country’s wealth – and cannabis was certainly one of the country’s natural resources. As he had said, the Club did not expect to have any difficulty complying with the law. The growers were cultivating cannabis privately on behalf of other adults.  

Returning to the implementation question, Adv Bekker said that the Club used a sophisticated software system that tracked every aspect of its operations – the market, the growers, the plants that were put in the ground, and so on. Even a greatly simplified version of this system would help tremendously with enforcement. For example, it enabled the Club to tell the police how many members it had and how many plants it was growing. For example, if it had 300 members, the “club quota,” which the Club and its growers could collectively cultivate, was 1 200 plants – because the Bill allowed each individual to grow four plants. If other cannabis users who organised themselves collectively as clubs or non-profit companies could collect even a small fraction of the data that the Growers Club captured, this would result in informative record-keeping, and make the authorities’ jobs easier. The supervision and enforcement of the Bill should not be counterproductive or render the Bill “toothless.”

Adv Bekker said that the Growers Club was also auditable – it had auditable figures and cultivation standards. It was traceable, with its own bank account. The Club was pro-regulation and self-regulating – one respect in which he thought the Club differed from some of its peers in the cannabis industry. To join as members, individuals had to agree to certain conditions, which were taken directly from the Bill and its preamble. Members had to adhere to the Club’s code of conduct. The Club also imposed its own sanctions for non-compliance, outside those imposed by the Bill. For example, if a member committed his full quota of four plants to the Club, then he could not grow any plants himself. If he did, he was kicked out of the Club and forfeited his deposit.

Adv Bekker addressed an argument made in other public submissions. During the previous day’s public hearings, Mr Jeremy Acton had said that he had a constitutional right to consume cannabis that could not be limited by the state. Yet the exercise of one’s constitutional rights had to be balanced against the recognition of the constitutional rights of other people. Thus even if one had the right to enjoy cannabis, one had to do so in private, without children nearby. Moreover, Parliament was entitled to make laws that essentially protected citizens from themselves. Citizens could not just say that they could do whatever they wanted in respect of their own bodies. For example, it was compulsory to wear seatbelts – on pain of a fine or even a sentence – because that was in the interests of citizens themselves, given the potential damage that could be done by road accidents. The Bill was the same kind of legislation. Alcohol, tobacco, and foodstuffs were not unregulated – the government regulated the substances that people consumed.

Adv Bekker said that the Growers Club shared everybody else’s enthusiasm to see ordinary people reap the benefits of decriminalising cannabis. However, it believed that this was possible under a proper interpretation of the current Bill. It supported the Bill. It also had ideas on how to make the Bill “workable,” and it would be happy to work with anybody who wanted assistance on implementing a model similar to its own. The Club was not “elitist.” It aimed to help fulfil the needs of any citizen who was precluded from privately cultivating cannabis for his own consumption, for whatever reasons. Those reasons could be financial or they could be related to a lack of opportunity, a lack of space, or a desire to protect the children in one’s household.

Adv Swart also asked for Adv Bekker’s view about the Bill’s penalty clauses. It seemed to him that even the Class D offences – the possession and consumption offences – were linked to heavy penalties. Class D offenders could incur imprisonment for up to two years – although, given the Adjustment of Fines Act, fines could be levied in place of prison sentences. Class C, B, and A offences were linked to maximum prison sentences of four years, six years, and 15 years respectively. These penalties seemed heavy, particularly given that – as the Committee was well aware – South African prisons were already overpopulated with serious offenders. This was also related to the need for restorative justice approaches, and to the idea that cannabis-related problems should be dealt with from a social justice perspective rather than a criminal justice perspective.

Adv Bekker agreed that the sentences in the Bill were extremely severe. In determining the penalties, there were not only legal considerations but also, as Adv Swart had said, socioeconomic considerations. Moreover, punishment was a complicated, multi-faceted issue in South African criminal law. However, the severity of the penalties was not a reason to reject the Bill – it would be easy to reduce the sentences when Parliament and the Committee refined the Bill later. That was a detail – the “nuts and bolts” of the legislation. The same applied to the various quantities set out in the Bill – it would be easy to later adjust those by a few grams.

Adv Bekker said that the Growers Club took issue with three elements of the Bill: the need to enable people to earn a legal income cultivating cannabis on the behalf of others; the need to enable seed imports; and the severity of the penalties. The first two issues could be dealt with by way of the amendments proposed in the Club’s submission, and the third issue should be considered by Parliament later. But it agreed with the essence and broad thrust of the Bill – it was an enabling law which the Club thought it could legally operate under. It saw a way to make the legislation work, and it wished to share its experience – and maybe its operating model – with others. Some people were “bashing against the door,” but the Club believed that the door was being opened, and that members of the public should make the best of the opportunity. The Bill might not be perfect or ideal, but it was a start, and it was an improvement on prior legislation.

The Chairperson noted that Adv Bekker had mentioned that the Growers Club served a “high-value market.” What did this mean?

Adv Bekker replied that cannabis came in different strains or cultivars, each of which induced a certain feeling or experience when consumed. The quality of the product determined its value on the market. It also mattered a lot to some consumers to only ingest products that had been organically cultivated. Certain strains – some South African or African, others foreign – were “high-value” strains, known internationally under a specific name and recognisable for their qualities. The Growers Club cultivated high-quality cannabis, grown organically from very good genetic material. In terms of genetic material, the Bill focused on seeds, but the Growers Club used cuttings. This was because cuttings reproduced the genetic material of the original plant, while plants grown from seeds were “like litters of puppies” – some were good and others were not.

Adv Bekker said that the Growers Club would provide its cannabis farmers with cuttings of the desired plant. For example, it might have a certain number of members who wanted to grow a certain strain – Durban Poison, for example. The Club would give a farmer the right cuttings, assist him with techniques and knowledge, and monitor his progress, testing the soil and so on. Then the Club could guarantee to its members that the final product – dry cannabis flower, typically smoked or consumed in another way – was of verifiably high quality. Naturally, such a product sold at a higher price and a higher profit margin than ordinary street dagga. This was advantageous for the community, because the higher profits could be passed on to the farmer, who was thus rewarded for having cultivated a “truly magnificent” strain. Perhaps others would notice that those farmers were being more highly remunerated, and hopefully the high standards would thereby spread, ultimately resulting in a culture of compliance and improving the quality of South African cannabis products.

On the use of foreign cultivars, Adv Bekker drew an analogy with the wine industry. South African wineries made a wonderful pinotage wine from the South African pinotage grape. But it also produced a range of other wines, using grapes from all over the world, sometimes in combination with pinotage grapes. It was the same with cannabis. It would be wrong to limit South African companies to only producing South African strains of cannabis. Instead, they should take the best South African strains and see how they could be improved, through breeding and so on, so that the resulting cannabis could compete with, and even outcompete, foreign strains. The Growers Club thought that there was an opportunity to “make something of” indigenous African and South African strains, and to place those strains where they belonged, in the high-quality international market. That would ultimately be to the benefit of the South African growers. When it came to cultivars, South Africa should be non-exclusive, but should certainly give preference to local strains.

In the chat function, members of the public had been complaining about the length of the Committee’s discussion with the Growers Club. The Chairperson reminded them that the Committee allocated 20 minutes for each submission and then 30 minutes for the discussion that followed. Nobody should “intimidate” speakers while they were still responding to questions – nobody was being given an unfair advantage.

The Committee adjourned for a lunch break.

Oral submission: Rastafari National Council
Mr Ras Sandile, Secretary General, Rastafari National Council (RNC), made a submission on behalf of the RNC.

The RNC held that the Bill was unconstitutional and irrational, and that it had been drafted without sufficient consultation. The RNC had not been properly consulted even though the Rastafari community had borne the brunt of the criminalisation of cannabis in South Africa. Its central recommendation and demand was that Parliament should rewrite the Bill following proper consultation, including consultation with representatives of Rastafari organisations.

Rastafari self-regulation

Mr Sandile said that the RNC held that the Rastafari should be excluded from cannabis regulations and permitted to self-regulate. The Rastafari should be allowed to propose their own cannabis regulatory framework for their community, which would include a system of licensing and permits for recognised growers, distributors, and churches. 

Other recommendations

The RNC also recommended that:
- Cannabis should be removed from the schedules to the Drugs Act;
- Children should be permitted access to cannabis education; to religious and cultural ceremonies involving cannabis; and to cannabis itself, for all purposes except smoking;
- The criminal records of Rastafari individuals charged with cannabis possession should be expunged;
- The Bill should permit the extraction, processing, and trade of cannabis, to expand access to cannabis to those who did not own land for cultivation; and
- The Rastafari community should be included in the commercial cannabis industry.

(See presentation)

Discussion

Dr Newhoudt-Druhen asked whether the RNC had ever presented before any other parliamentary committees at the national or provincial level. Also, had the RNC provided any input on the Cannabis Master Plan, and what was its view of the Master Plan?

Mr Sandile replied that members of the RNC had made prior presentations to government. Much of its communication had been with the CRL Rights Commission. In 2014, it had made recommendations about how to address the challenges facing the Rastafari community. Those recommendations should be looked at again, because what he had said today was nothing new, and all of it had been raised previously.

Mr Sandile had looked at the Cannabis Master Plan, which he thought made some good points and had an “honest” approach. However, it was not as decisive as it needed to be. It acknowledged the industrial and medicinal value of cannabis, but completely neglected the sacramental aspect of cannabis. The latter was central for indigenous and religious communities, and had to be taken into consideration. Personally, he thought the Master Plan could be improved. The RNC had not provided any formal input on the Master Plan, but it would really like to, if there was still room to make changes. It was a centralised body representing both churchical and non-churchical Rastafari communities, and it had research to put forward.

Dr Newhoudt-Druchen said that today was the first day of Deaf Awareness Month. This made her wonder whether South Africa had any similar celebrations that recognised the Rastafari community and heritage. For example, did the Rastafari community celebrate Indigenous People Day? Was the Rastafari culture included in the school curriculum? She thought that such measures were an important part of societal education. They could help mitigate the persecution experienced by the Rastafari community, and help protect Rastafari children.

Mr Sandile replied that the 2014 recommendations had included recommendations for teaching about Rastafari culture and beliefs in schools, to increase intercultural understanding. However, the RNC had not yet formally engaged with government on this specific issue. This was linked to the need for the Rastafari to be recognised by government, so that, for example, different departments could make recommendations to one another. That way, the RNC would not need to “start from scratch” every time it engaged with a government entity on some issue – there would be a baseline understanding of the Rastafari community to work from and build on. 

The Chairperson said that he thought the Cannabis Master Plan should be viewed as “a living document.” Many organisations which had made submissions had expressed interest in engaging further with the Master Plan process. The Committee would ensure that the door was open for such engagement, and would speak to DTIC and especially DALRRD to encourage this. DALRRD was the overall lead department on the Master Plan, although there were various pillars with various leaders – for example, NDOH led the first pillar.

Programme for the remainder of the meeting

The Committee secretary said that the two remaining speakers were not yet available. He thought that the organisations were tied up elsewhere, because, according to the programme, their submissions were scheduled for later.

Dr Newhoudt-Druchen asked what had happened to the submission from the Traditional Healers Organisation, which had been scheduled for that morning. Would the Committee hear that submission tomorrow instead?

The Chairperson replied that the Committee would tomorrow day hear the submissions that it had scheduled for tomorrow. If organisations had not shown up today as scheduled, and had not sent apologies, the Committee took it that they had “waived their right to speak.”

The Chairperson suggested that the Committee should take a break while waiting for the remaining speakers to become available.

The Committee adjourned for a break. 

Oral submission: Azibuye Emasisweni Institute
Mr Sizwe Dladla, Azibuye Emasisweni Institute of Wellness and Indigenous Knowledge Systems, opened Azibuye Emasisweni’s submission.

The Chairperson said that Azibuye Emasisweni had arrived 15 minutes late, and asked whether Mr Dladla intended to apologise. 

Mr Dladla apologised. Azibuye Emasisweni had been asked on short notice to make its submission earlier than originally scheduled, and it had tried its best to comply with that request.

Another representative of Azibuye Emasisweni presented the rest of the submission. He said that Azibuye Emasisweni rejected the Bill in its current form. The Bill:
- Would not facilitate growth and development;
- Wrongly restricted individuals’ right to decide whether to use a natural plant;
- Did not fully address the Constitutional Court order;
- Unscientifically singled out hemp, which had to be imported, at the expense of indigenous cannabis; and
- Was “over-regulated,” and therefore would leave cannabis trade in the hands of gangs and drug cartels and strain the criminal justice system. 

Recommendations

Azibuye Emasisweni recommended that the Bill should:
- Regulate cannabis in the same way that alcohol was regulated;
- Permit the cultivation of 3 500 flowering cannabis plants per adult, or 35 000 per household; 
- Not restrict the amount of plants or dried cannabis possessed or consumed by adults;
- Not prescribe the quantities of seeds to be exchanged among adults; and
- Provide for reparations to the Rastafari community.

(See presentation)

Discussion
Dr Newhoudt-Druchen asked what services Azibuye Emasisweni provided – did they provide education, for example, or direct services?

Mr Dladla replied that Azibuye Emasisweni was a non-profit company which played an advocacy role in respect of many issues, including social justice issues and the promotion of complementary medicines and alternative medicines. It currently had about 80 affiliate members, including some groupings which farmed cannabis or produced cannabis-based products. It therefore had an interest in contributing to the Bill. Slide 3 of the presentation provided more information about Azibuye Emasisweni’s values, and, at Members’ request, further information could be sent to the Committee about the organisation and its constitution. 

Dr Newhoudt-Druchen noted that Mr Dladla had said that Azibuye Emasisweni had made a written submission on 20 October 2020. Who had that submission been sent to – a specific department?

An Azibuye Emasisweni representative replied that the submission had been made to Parliament through an email address that Azibuye Emasisweni had been given.

The Chairperson said that Azibuye Emasisweni had probably responded to the first invitation for comments on the Bill, which had been advertised last year.

The representative replied that that was correct.

Dr Newhoudt-Druchen asked whether Azibuye Emasisweni had provided any input on the Cannabis Master Plan.

The representative replied that Azibuye Emasisweni had not provided input on the Master Plan, because it had only recently been established. Azibuye Emasisweni would like to contribute to the development of the Master Plan if there was still an opportunity to do so.

The Chairperson thanked Azibuye Emasisweni for making the effort to contribute to the legislation. The Committee did not take the public’s efforts for granted.

Oral submission: GSR Consulting
Mr Brett Kanichowsky, Director, GSR Consulting, made a submission on behalf of GSR Consulting. He introduced GSR Consulting as an international cannabis seed bank, which was South African but which currently operated overseas for legal reasons.

Proposed amendments

GSR Consulting proposed that the Bill should be amended by:
- The inclusion of “juristic persons” within the definition of “person”;
- The insertion of a clause 2(4), reading, “Subject to this Act, an adult person may purchase from any person authorised by this Act for personal use the prescribed quantity of cannabis plant cultivation material”;
- The amendment of clause 3(7) to criminalise dealing in cannabis plant cultivation material by “any unauthorised person,” instead of by any person; and
- The insertion of a clause 9(3), reading, “The Minister may make regulations to prescribe the regulations or standards, accreditation criteria, and authorisation process regarding persons who deal in cannabis plant cultivation material.”

The amendments to clauses 2 and 3 were intended to allow for the purchase of cannabis seeds by adult persons, but only from authorised persons. The amendment to clause 9 would assist in aligning the Bill to the Plant Breeders’ Rights Act (PBRA).

Mr Kanichowksy said that GSR Consulting’s written submission provided more detail about how legislation should enable the trade of cannabis seeds and cultivation materials, and the registration of genetics. The current Bill did not consider these aspects. However, the PBRA under DALRRD already provided the constructs needed to manage the performance of breeders and the registration of genetics, in the context of both private and medicinal use.

Taking the requisite measures could not only provide a source of tax revenue, but also protect South Africa’s botanical heritage. There was a threat that South Africa’s indigenous landrace strains could otherwise be lost – unlike the rooibos plant, which had been patented. There was already aggressive crossbreeding with these strains occurring across the world.

Discussion
Dr Newhoudt-Druchen asked GSR Consulting to clarify how it was possible for an international company to sell cannabis seeds in South Africa. Had it possessed, harvested, and traded seeds inside the country even before the Prince judgement?

Mr Jordyn Murcia, Director, GSR Consulting, replied that GSR Consulting did not trade inside South Africa. It was licensed in California and traded in the United States, where it was legally allowed to produce and sell the seeds. It also shipped to Europe, where legislation allowed people to purchase unregistered seeds and preserve the genetics. GSR Consulting had been pushing for similar legislation in South Africa since the Prince judgement. Allowing the sale of seeds would only require simple legislative changes. Currently, it was not even legal in South Africa for a consumer to purchase cannabis seeds.

Dr Newhoudt-Druchen asked why South Africa had to import seeds from overseas, instead of cultivating the strains that had always been available inside the country.

Mr Murcia replied that he did not believe that South Africa strictly had to import international genetics. Its indigenous landrace cannabis strains were very important, especially for breeding – they had strong genetics that had not been altered or bred, so the plants grew very well and were not susceptible to viruses. However, it was also important to be aware of the research and genetics being produced worldwide. GSR Consulting had come across more than 100 000 strains of cannabis so far, and there were probably more than a million globally. Each strain had different medicinal properties, or – on the recreational side – a different “taste” or experience for the consumer. For example, in South Africa, there were prevalent sativa strains, while other countries had indica strains. Researchers wanted to see how different strains could work together and how new South African genetics could be created.

Dr Newhoudt-Druchen asked whether GSR Consulting had reviewed the Cannabis Master Plan and, if it had, what its views were.

Mr Murcia replied that he thought the Master Plan was a good “starting point” for discussion. However, it appeared to him that many points in the Master Plan had not been properly researched and had been “thumbsucked,” especially the various restrictions on the permissible quantities of cannabis in different forms. For example, a household was only allowed to cultivate eight flowering plants, and flowering plants were distinguished from seedlings on the basis of their height. But he did not think that the height of the plant was a reasonable criterion – there should be multiple criteria, based on multiple attributes of the plant, and those criteria should be properly researched. Some very small seedlings were twice the size of some mature plants for genetic reasons.

The Chairperson asked GSR Consulting for its general comments on intellectual property issues as they applied to the commercialisation of cannabis. Alternatively, perhaps GSR Consulting would like to make a presentation or written submission in the Cannabis Master Plan process.

Mr Murcia replied that he had been worried about intellectual property since GSR Consulting had started operating in California in 2013. There had been no legal way to register South African genetics and export the seeds. He and some others would fly into South Africa to take seeds back to Europe or the United States for crossbreeding. People had been doing this for centuries, and it was a big concern. South Africa had to “jump on it” very quickly. However, the PBRA was already in place. GSR Consulting had met with DALRRD, who said that, once the seeds were legalised, it could easily adjust the PBRA and start registering cannabis genetics. But it could not begin that process until the seed was separated from the plant in the eyes of the law.

Mr Murcia said that if South Africa was not registering its own genetics, those genetics would be registered overseas. He thought that three THC genetics had already been registered in Europe. Private American companies were also beginning to register genetics, although they were not government bodies. People and governments around the world were paying attention to this issue. GSR Consulting wanted to ensure that indigenous landrace genetics were registered and protected, so that they were not lost to international companies or governments.

Dr Newhoudt-Druchen noted that GSR Consulting had recommended specific amendments to the current Bill. Did that mean that it was otherwise satisfied with the Bill? She was asking because many of the other submissions had rejected the Bill.

Mr Murcia replied that GSR Consulting had formulated the amendments with advice from its South African law firm, Webbers Attorneys. The firm had recommended that its submission should concentrate on its central objectives and its area of expertise, instead of covering the entire Bill. That was why GSR Consulting had provided specific comments on certain specialised issues about which it was knowledgeable. There were other provisions in the Bill that he disagreed with, but he had trusted that other members of the public would pursue those objections.

The Chairperson said that he looked forward to receiving further contributions from GSR Consulting, especially on intellectual property issues. He hoped it would interact with DALRRD and DTIC, the lead departments on the Cannabis Master Plan. It was important that the Master Plan processes included South Africans and people who were invested in the industry. The Committee had been told that the cannabis industry could create between 10 000 and 30 000 jobs, although he was not sure whether that estimate had been verified. In the current environment of severe unemployment, that was an opportunity that the country should be “taking with both hands.” It was important that, in commercialising and industrialising cannabis, government was assisted by organisations which were passionate about the issue, so that South Africa was not “left behind.”

Closing remarks

The Chairperson asked the Committee secretariat what time the Committee would meet tomorrow, and how many submissions it would hear.

The Committee secretary replied that the meeting would begin at 1 p.m. and that the Committee was currently scheduled to hear seven submissions.

The Chairperson thanked the organizations that had made submissions and the observers who had been present throughout the hearings so far. They were clearly committed to changing the cannabis industry. The Committee appreciated their support and criticism, and hoped that it would enhance the Bill. Even if the final Bill was not what some stakeholders had in mind, he thought it would be the beginning of the process of changing the cannabis industry. The Committee was responsible for one part of that transformation – this Bill itself – and other parliamentary committees would be responsible for others. For example, the Portfolio Committee on Trade and Industry would be responsible for the commercialisation of cannabis. The process would be a journey, and Parliament and stakeholders had to walk that journey together.

Dr Newhoudt-Druchen asked the Committee secretariat to send the documents for the next meeting well in advance, to accommodate her accessibility needs.

The meeting was adjourned.