Big problems with South Africa’s proposed cannabis laws

 ·6 Sep 2020

The Cannabis for Private Purposes Bill, tabled in parliament on 1 September, provides clarity around the growing and private use of cannabis in South Africa.

While the bill can be seen as the first step in a revised, progressive approach to cannabis in the country, the proposed legislation also throws up a number of red flags, says law firm Cliffe Dekker Hofmeyr.

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

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

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

Commercial aspects missing

Perhaps the most glaring of all the omissions from the bill is its complete failure to address most commercial aspects and opportunities of cannabis, the firm said.

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

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

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

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

What the bill does offer 

What the current bill does offer, is a detailed schedule on the quantities of cannabis and related products, including derivatives that can be grown and possessed by individuals in accordance with their right to privacy.

While this is welcome clarity, the Bill ignores the daily lived realities of most South Africans who live on or below the poverty line, Cliffe Dekker Hofmeyr said.

“Such persons do not have the benefit of garden space to grow their plants, or enough rooms in their dwellings to ensure that they can participate in the benefits of the Bill while not violating the stringent conditions applied therein.”

However, the firm said that credit must be given as the bill provides for the expungement of criminal records resulting from previous convictions.

Where to from here?

The next steps in the legislative process are for parliament to engage stakeholders and the public at large on the draft.

“Even in the short time that the Bill has been circulating, it has become abundantly clear that Parliament is in for a marathon public participation process in which the stakeholders and public will pick apart the shortcomings of the bill,” Cliffe Dekker Hofmeyr said.

“This will hopefully result in the drafters revisiting the bill and the general approach to cannabis regulation and legalisation which is currently taking place in such a piecemeal fashion that it will likely become more burdensome on the state to enforce such provisions.”

Commentary by Andrew MacPherson, Malerato Motloung, and Shaad Vayej of law firm Cliffe Dekker Hofmeyr.

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