Land Court Bill: adoption; Drugs and Drug Trafficking Amendment Bill: public hearings & Department response

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Justice and Correctional Services

20 September 2022
Chairperson: Mr G Magwanishe (ANC)
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Meeting Summary

Video

Tabled Committee Reports

The Portfolio Committee on Justice and Correctional Services considered and adopted the report on the Land Court Bill.
 
The purpose of the Bill is to provide for the establishment of a Land Court and a Land Court of Appeal, make provision for the administration and judicial functions of the Land Court and Land Court of Appeal, make provision for budgetary matters and provide for the exclusive jurisdiction of the Land Court and Land Court of Appeal for certain matters. The Bill further provides for mediation and arbitration procedures and amends certain laws relating to the adjudication of land matters by other courts.
 
The Bill will now be sent to the National Assembly for adoption after which it will be referred to the National Council of Provinces.

The Committee also heard oral submissions on the Drugs and Drug Trafficking Amendment Bill (also known as the “Drugs Bill”) from two interested parties: A legal representative from Raymond McCreath Inc who represented clients participating in the cannabis club model of cannabis cultivation, and the leader of the Dagga Party of South Africa. The Committee also received a presentation from the Department of Justice and Constitutional Development on the written submissions received by the Department, as well as its response thereto.

Following this, the Department presented the Bill and Members were satisfied with it.

The Committee agreed to adopt the Bill and accompanying report the following day.

Meeting report

Committee Report on the Land Court Bill
The Chairperson took the Portfolio Committee on Justice and Correctional Services through the Draft Committee Report on the Land Court Bill [B11–2021].

Mr Henk du Preez, Senior State Law Advisor, Department of Justice and Constitutional Development (DoJ&CD) noted that he did not prepare the draft report.

The Chairperson confirmed that it was Ms Christine Silkstone, Committee Content Advisor, who had prepared the draft report.

Mr W Horn (DA) felt that there could be improvements made to paragraph 5. With the last part that said "Equal to that of a division of a High Court of South Africa", he was unsure if that was technically correct. The way he understood the Bill, the Land Court was a High Court, and it was stated as such in the first part of paragraph 5, so he felt that the last part could be deleted. The other issue he had with paragraph 5 was that the Land Court was a court of law and equity, but only in relation to matters in terms of restitution legislation. It was envisaged that other legislation in future could also introduce the equity considerations, but he did not think it was technically correct to say that it was a court of law and equity in respect of all matters at that stage.

Adv G Breytenbach (DA) suggested that instead of saying "and is a High Court", paragraph 5 could read "it has the status of a High Court".

Mr Horn asked if the Committee would introduce the phrase "in respect of the Restitution of Land Rights Act 22 of 1994" in brackets after the word "equity".

Ms N Maseko-Jele (ANC) moved for the adoption of the report as corrected, and Dr W Newhoudt-Druchen (ANC) seconded the motion.

There were no objections.

Read: ATC220920: Report of the Portfolio Committee on Justice and Correctional Services on the Land Court Bill [B 11 - 2021] (National Assembly – section 75), dated 20 September 2022


The Chairperson said that the report would be taken to the Programming Committee. The report would be debated in the House the following week. He asked if the Members would prefer a full debate or declarations.

The Members preferred declarations.

The Chairperson said that the House would be advised of that. He thanked Mr du Preez and Mr Makhubela Mokulubete, State Law Advisor, DoJ&CD, for their hard work. The Committee was indebted to both men, and to other members of the Department who might have assisted them.

Drugs and Drug Trafficking Bill Oral Submissions
The Chairperson said that two people would present, and then Mr Sarel Robertse, State Law Advisor, DoJ&CD, would respond. The Committee would then go to the Drugs and Drug Trafficking Amendment Bill (also known as the Drugs and Drug Trafficking Bill) itself, which the Committee was under a lot of pressure to finalise. Hopefully, the Committee would be able to adopt the Bill the next day.

Delegates from Raymond McCreath Inc were present in the meeting.

Raymond McCreath Inc
Mr Ziegfriedt Loots, Legal Representation of clients involved in the club model of cannabis cultivation in South Africa, Raymond McCreath Inc, presented.

Mr Loots observed that his clients represented the models currently seen in South Africa, where people were trying to work within the parameters of the law. People were trying to comply with the 2017 and 2018 Prince judgements. There was no entrenchment - in the new proposed Bill - of the decision made in the Constitutional Court judgement of the Minister of the DoJ&CD versus Prince. This was clear from part 3, where one could see that the definition of cannabis was still including the whole plant, and therefore making it illegal. Furthermore, the judgement stated that the entrenchment should comply by excluding section 4(b) and also section 5(b) of the principal Act, as they were not consistent with the right to privacy as entrenched in section 14 of the Constitution. Considering these constitutional inconsistencies, it was clear that the new proposed Bill had not made provision for such inconsistencies to be cured. It was not in the public interest to enact that Bill, and it would be contra bonos mores ("against that which is fair and just as seen by society"), and therefore against public policy.

Further, the fact that the legislation should comply with the judgement in allowing the use in private and the cultivation in private should have been included by the legislator to practically apply that. By “in practice”, Mr Loots meant that the public should have some way of transporting the cannabis, seeds, clones, or plants to their house, or a place to do such private cultivation for private use. Therefore, the legislation should provide the practical implications of such circumstances. Another point on practical implications was the question of where citizens obtained seeds, clones, or plants for them to enforce their right (as stated in the Constitutional Court judgement) for use in private and cultivation in private. People must be able to buy such things somewhere for them to enforce their right to private use. The new proposed Bill did not seem to comply with practical implications. Therefore, the legislature should take steps to consider those practical circumstances and make provisions for those circumstances in the Bill.

Discussion
Adv S Swart (ACDP) asked the presenter whether he had read the Cannabis for Private Purposes Bill and the Schedules, which excluded cannabis. The fact that he was raising those issues seemed to indicate he had not read them because cannabis was excluded in the Schedules, which would impact the Drugs and Drug Trafficking Act. Secondly, he asked if the presenter understood the implications of not amending the Bill urgently by 16 December 2022, which would mean that all drug-related matters, in terms of the Constitutional Court order, would not be able to be prosecuted.

Dr Newhoudt-Druchen wanted to clarify who the presenters were and whom they represented. She was also “a bit puzzled” about the presenter’s bringing up the cannabis matter, but Adv Swart covered her in terms of the Cannabis for Private Purposes Bill.

Mr Loots said that in relation to the Schedules, Raymond and McCreath did see an attempt to have that in some way. However, by reading the definition in part three in totality, where the whole plant was included, in its opinion, that was too much of a broad spectrum where people did not get clarity on the directness of what the judgement wanted, and therefore, that people are allowed to enforce their rights to privacy. The definition was not very clear in the Schedules, and it needed to be clearer. There should be more allowance for the citizens to enact their right to privacy.

Mr Loots said he was representing some of the most common club models seen in South Africa.

Adv Swart repeated his question, which related to the implications of not amending the Bill in terms of the Constitutional Court order. Did the presenter understand that it would be almost impossible to prosecute all drug-related matters if the Committee did not amend the Bill urgently in terms of that Constitutional Court deadline?

Mr Loots replied that there was a two year period given to the legislature to enact the Bill. It was not the citizens of South Africa’s issue to actually help the legislature to do its job and citizens should not be suffering from the consequences of that. He felt that the Schedules needed to give clarity on cannabis and go on with listing other drugs, but there was a need to clearly distinguish between the two. The onus was on the legislature to use the time specified. It had been a long time since that time had passed. He did not feel that the citizens should be the ones addressing that factor.

The Chairperson observed that the time for completing the Bill elapsed on 17 December 2022, so it had not yet passed. He reminded Mr Loots of the question about where Raymond McCreath Inc was based. He said that the Committee had to meet the deadline or there would be serious challenges.

Mr Loots felt that there was enough time to get the enactment of the Bill right.

The Chairperson suggested not arguing about that. From the Committee, the Drugs and Drug Trafficking Amendment Bill went to the National Council of Provinces (NCOP) which needed to follow its own processes, and then it went to the President. Technically, the Committee was at “the 11th hour”.

Mr Loots explained that Raymond McCreath Inc was based in the Somerset West area.

The Chairperson thanked Mr Loots for his input. The Committee would consider the input when it did the clause-by-clause deliberations. Members had gone through the presentations since they had received those the previous week. There had been responses to some of the issues raised from the Department’s side, and the Committee would consider that. Where preferable, the Committee would incorporate some of the inputs into its presentations. But if the Committee did not agree with certain submissions after it had received responses from the Department, it would continue with the Bill. The Committee was bound to consider the inputs as it was doing in the meeting. It would take the inputs into account when it was dealing with the Bill.

The Dagga Party of South Africa

Mr Jeremy Acton, Leader, Dagga Party of South Africa, presented. Concerning the Bill, he was in touch with users of other substances, and took an interest in the issue of addiction, as well as the use of the Illicit Drug Trafficking Act to fight the problem of drugs in South Africa.

He observed that the public participation in these amendments was “the first time ever that the public has been allowed to participate in any form of drafting of this Act”. It was imposed on society by the state even before the end of apartheid. Its name changed in 1992 to the Drugs and Drug Trafficking Act, but the premise of prohibition had been a matter ever since the 1920s. In his opinion, the public participation process did not validate or give any credibility to, or give any social contract to the Drugs and Drug Trafficking Act; not by himself, nor by any other South African upon whom this Act had been imposed. It was not enough to debate the few amendments to the Act, it was necessary for the entire Act to be reconsidered by society, and whether the “drug war” and the proactive policing of substances was the correct way to go. He did not support the “willy-nilly free market of all substances”. He knew that many substances were dangerous in the wrong hands. He was calling for a complete reconsideration of the scientifically verified effects of all the listed substances, and a transparent determination of what was deemed desirable or undesirable in the Schedules. Those determinations have been imposed on society by those who profit from the prohibition of certain substances in many ways. For example, pharmaceutical corporations profited from the prohibition of cannabis, psilocybin and cathinone. Corporates profited from listing cannabis in the Drugs Act to profit in the soya bean market. Now that cannabis was listed as a drug, it could not be used as a food supply. Those were the “ploys” that had been used in drafting that Act to empower the interests of corporations. To “use ordinary people as the fodder for a drug war” also fed the prison system, which had many people benefitting from tenders that then used drug numbers to fill those prisons for their profits. A hurried approval of that Act with those amendments showed the mindset of “needing to prosecute”, rather than taking a step back to look at the entire Drugs and Drug Trafficking Act, because the Schedules were "a mess".

Mr Acton stated that the Schedules were not scientific, and were used for political and economic reasons, and for the reasons of suppressing people’s rights to access nature and natural healing. The Schedules must not only be about the listing of names of substances, but in the interest of transparency, must also feature an open public database of the known clinical, positive and negative effects of that substance. This way, people would be able to clearly see that the substance was correctly scheduled. If that was done, alcohol would be more tightly regulated. Alcohol was an industry in which “the state was complicit” by levying taxes. Alcohol was not listed in the Schedules, because it was a commercial product. So too should cannabis and psilocybin be commercial products. He had spent most of his time fighting for the rights of cannabis users, and for the truth of the cannabis plant to be recognised by the state, both in the Constitutional Court judgement, as well as in the Cannabis for Private Purposes Bill. The state continually refused to acknowledge that cannabis was “more than a drug”. The state only registered cannabis as a drug “in order to prevent social access to the other benefits of the plant. For example, Mr Acton had in his hand an affidavit that was “hidden by the state” in the Constitutional Court case. It was an affidavit by hemp expert Mr Anthony Budden as an expert witness for industrial cannabis. In that affidavit, Mr Budden confirmed that “cannabis is a medicine, and that Tetrahydrocannabinol (THC) is directly involved in the health-giving effects of cannabis medicine”. Mr Budden also confirmed that hemp was an industrial resource, and a resource for clean energy. He also confirmed that the seed obtained from the cannabis plant was significantly nutritious. Yet, citizens were banned from cultivating quantities to benefit from healthy nutrition, and were forced to buy corporate soya which was “enriched with weed killer and genetically modified organisms (GMOs)”, which were toxic to health. This was an example of the illogical scheduling of the state of that particular resource as a drug in order to police it as a drug, and to prevent the use of cannabis for the benefit of society.

Mr Acton completely rejected the Schedules as they were. The problem with cannabis in the Schedules pointed to the other problem that many other substances were listed there to prevent society from benefiting from the use of those substances.

Another substance that Mr Acton wished to mention was psilocybin from the so-called “magic mushrooms”, and the psilocin, which was what the psilocybin broke down into for human brains to use it as a serotonin-enhancer analogue. If one went to PubMed, which was the U.S. National Institutes of Health's National Library of Medicine research archive, and one typed in “psilocybin”, one would get “at least 1 200 papers” pointing to how psilocybin was “the future of human mental health”, and not the selective serotonin reuptake inhibitors that were “peddled by the big pharmaceutical corporations”. Mr Acton alleged that psilocybin was listed in the Schedules “in order to make a market for serotonin reuptake inhibitors. It was a criminal listing, because it promoted a vested interest in the corporate sector. In the same way, the cannabis listing was a criminal listing.

Mr Acton wanted to point out that based on those two substances being called “undesirable, dependence-producing substances”, he, therefore, claimed the right to use privately all of the substances listed in that category, until such time as he saw from the state a transparent listing of the risks and benefits of all of the substances listed in all of the Schedules, so that he as a citizen may decide whether he agreed and contracted with the Act, or not. As it stood now, the Drugs and Drug Trafficking Act was used against users of cannabis and psilocybin and the growers of Catha edulis in the Transkei, Eastern Cape, who could earn a good living providing the cultural Catha edulis to the Somalian people who resided in South Africa. Such growers were banned from providing miraa, as the Somalians called it, to the Somalians. None of those substances led to physical harm or risk of death “in any way whatsoever”, and yet those substances were policed with methods that caused more harm than the substances. One could not apply laws in such a way that they caused more harm to the people than it was claiming to try to prevent. He did not agree with the Drugs and Drug Trafficking Act until such time as a more scientific approach and more heed from impartial experts was taken, so that South Africa could actually have a drug law that worked for the people instead of using people as fodder for prisons. That was why he could not accept the amendments when in the past, amendments had been gradually made over the past two or three years since the judgement. These amendments were made “without public participation” in the scheduling of dronabinol, which was a form of THC.

Mr Acton urged those who were thinking about the Drugs and Drug Trafficking Bill to “go back to the drawing board” and start with the “open, transparent, and verified science”, and not the “propaganda” that had resulted in cannabis and psilocybin being in those Schedules.

On the use of LSD and psychedelics, he claimed his right to use any psychoactive plant material, and to privately process that plant for himself. Where he in his culture, in that use of that plant, freely associated as an informed, consenting adult, did not accept the prohibition of that substance in any way. “We will deal, amongst ourselves, as informed, consenting adults in a private context, and within the context of a culture”. If the Drugs and Drug Trafficking Act wanted to positively contribute to South Africa, it should not “come with lies and unscientific nonsense” and police. The Act must come with science and an approach to caring for South Africans instead of putting them in prisons.

The Chairperson said that the Committee would consider what Mr Acton said when it processed the Bill. Two people had made oral submissions to the Committee that day. Others had made contributions via written submissions.

Mr Acton asked if he could obtain the recording of his submission so that he could make a written transcript of it.

The Chairperson suggested that he could get in touch with the Committee Secretariat.

The Chairperson observed that the Committee had come to the end of the public hearings on the Drugs and Drug Trafficking Amendment Bill. The Committee then invited the Department to respond to the issues raised that day, and to the issues raised by people who made written submissions.

Drugs and Drug Trafficking Amendment Bill [B19–2022]: Department Response

Mr Robertse presented a document with the Department’s response to the comments received. In response to Mr Loots: Mr Loots represented cannabis clubs, which were being considered by the Committee in respect of the Cannabis for Private Purposes Bill. Mr Robertse pointed out that there was a judgement recently (in the Western Cape High Court, if he recalled correctly) in the matter of Haze Club versus the Minister of Police, where the case related to the legitimacy of cannabis clubs in terms of the Prince judgement. The applicant in the Haze case contended, among other things, that the Prince judgement exclusion did include cannabis clubs. The court concluded that that was not the case. In that matter (case number 2101 of 2021), the court said that cannabis clubs were not legalised in terms of the Prince judgement.

Some of the aspects raised by Mr Acton would be addressed in the document that Mr Robertse was going to present.

He indicated that the Department received over 300 submissions relating to the current Bill.

1. General comments

The first issue that was raised was that the Drugs and Drug Trafficking Act (also known as the Drugs Act) was not supported or not fully supported. There was also the issue that the amendments that the Bill aimed to effect were unconstitutional. Previously, he had pointed out that certain amendments were effected to the Drugs Act in terms of section 63 of the Drugs Act, which provided that the Minister of Justice may amend the Schedules through the Drugs Act by way of notices in the Government Gazette. After consultation with the Minister of Health, the Minister effected amendments to the Schedules from 1996, up to 2014. Those amendments were also the subject matter of the Bill. He previously indicated in the Jason Smit case that the court found that section 63 of the Drugs and Drug Trafficking Act was unconstitutional, since it gave the Minister of Justice the powers that were only afforded to Parliament to amend an Act of Parliament. The court considered the Schedules to the Drugs Act as part of an Act. The Minister was actually operating under delegated plenary legislative powers, which Parliament cannot delegate or assign to other functionaries. The court also concluded in that case that all the amendments that the Minister of Justice effected in terms of section 63 of the Drugs Act, were unconstitutional, since it was an unconstitutional exercise of powers, and was therefore unconstitutional. The Bill aimed to rectify those lacunas through amendments that repealed section 63 of the Drugs Act, and also through amendments to the Schedules to the Drugs Act, to insert that “drugs or substances” in accordance with the Constitution by means of legislation.

Mr Robertse pointed out further that in relation to objections that the Bill was unconstitutional, South Africa had ratified the Single Convention on Narcotic Drugs and had certain obligations under that convention. Those conventions place certain substances under international control. Regarding the Constitution, section 2(3)(1), South Africa was bound by conventions it ratified, and it needed to exercise or give effect to whatever was required under such conventions.

[Please see the document for details.]

Discussion
Dr Newhoudt-Druchen asked about the international conventions. South Africa had to follow international conventions. With the Bill, the Committee needed to amend what the Minister previously added to the Schedules. The court said that during the time in which the Minister enacted the Drugs Act, it should not be his responsibility; it was delegated to Parliament. Was she correct in thinking that because South Africa was following these international conventions, the Minister, during that time, already legislated it? Why did the court then say it was now unconstitutional, and that it was Parliament's obligation? At that time, the Minister was obligated to make those changes because of the international conventions. Thus, the Minister had to follow those conventions. Now the court said that it was unconstitutional. She was confused about why that had happened.

The Chairperson asked Dr Newhoudt-Druchen if she could “park” her question until Mr Roberts finished the presentation. Mr Robertse would then respond to her question.

Department Response (continued)

Mr Robertse added that the drug conventions required the parties, amongst others, to adopt national legislation to give effect to the obligations under such conventions and there were requirements, amongst others, that such national legislation must criminalise any contravention of the provision of those laws that gives effect to a country's obligations under the drug conventions.

Mr Robertse continued with the general comments.

The rest of the comments and responses were grouped under the following headings:
2. Clause 1: Repeal of section 63
3. General: Clause 2 and Schedules 1 and 2
4. Schedule 1
5. Schedule 2
- 5.1 General
- 5.2 Substances: Dronabinol [(-)-transdelta-9-tetrahydrocannabinol] - Part II of Schedule 2; and Cannabis (dagga), the whole plant or any portion or product thereof, except dronabinol [(-)-transdelta-9- tetrahydrocannabinol]; and Tetrahydrocannabinol – Part III of Schedule 2

[Please see the document for details.]

Further discussion

Mr Robertse responded to the question of international conventions, and South Africa having international obligations, which it needed to give effect thereto. The question also asked if the Minister of Justice exercised his powers under section 63 to implement South Africa’s international obligations. In the Smit judgement, section 63 was challenged on the basis that it afforded the Minister of Justice plenary legislative powers to amend an Act of Parliament. The judgement indicated (amongst other things) that if one looked at the Constitution, the powers to amend, repeal, or otherwise deal with an Act was a function specifically afforded to Parliament. In terms of the Constitution, only Parliament could amend an Act, or repeal an Act. That was the constitutional baseline of how one dealt with legislation. Section 63 of the Drugs Act delegated those powers to the Minister of Justice. The delegation was to reflect that a member of the Executive can, by way of “administrative action”, amend an Act of Parliament. The Constitutional Court said that that was unconstitutional. It indicated that an Act of Parliament must be amended by another Act, and it must go through a parliamentary process. It was “quite strange” that the Court, at some stage, came to the conclusion that if some powers were designated to a functionary, it must provide for a framework of how that functionary must exercise such powers. In the context of the judgement, it was Mr Robertse’s submission that that could not be read to the effect that Parliament was allowed to designate or assign legislative powers to another functionary. It was quite clear in the judgement that an Act of Parliament must be amended by Parliament through another legislative measure. That was the basis of the judgement by the Court. Although the Minister, from 1996 to 2014, gave effect to South Africa’s international obligations, it was done under an unlawful designated power to the Minister of powers that could only be exercised by Parliament. That was the basis on which the amendments to the Schedules were declared to be unconstitutional.

The Chairperson thanked Mr Robertse for his work in responding to all the written and oral comments. He knew that Mr Robertse was working under immense pressure, so the Chairperson thanked Mr Robertse for responding to every comment that came to the Department in written and oral form.

Drugs and Drugs Trafficking Amendment Bill

Mr Robertse took the Committee through the Bill itself.

The purpose of the Bill is to amend the Drugs and Drug Trafficking Act, 1992, so as to—
•  repeal the Minister’s delegated plenary legislative powers to amend Schedules
1 and 2;
•  amend Schedule 1 and Schedule 2; and
•  provide for matters connected therewith.

Parliament of the Republic of South Africa enacts as follows:—

Repeal of section 63 of Act 140 of 1992

1. Section 63 of the Drugs and Drug Trafficking Act, 1992 (hereinafter referred to as
‘‘the principal Act’’), is hereby repealed.

Substitution of Schedules 1 and 2 to Act 140 of 1992

2. The following Schedules are hereby substituted for Schedules 1 and 2 to the
principal Act, respectively: [...]

[Please see the document for details.]

Objects of the Bill


Clause 1 repeals section 63 of the Drugs Act, to ensure that any amendment to Schedule 1 and Schedule 2 (which Schedules are considered as a part of the Drugs Act), must be effected in terms of an Act of Parliament.

Clause 2 substitutes Schedule 1 and Schedule 2 to the Drugs Act to effect the amendments referred to in paragraph 1.3.4 above, thereto.

The Objects of the Bill also showed the amendments to the Schedules, including the Government notices which inserted particular substances into the Schedules.

The Objects also mentioned what homologues of the listed substances were (being any chemically related substances that incorporate a structural fragment into their structures similar to the structure of a listed substance or exhibit pharmacodynamic properties similar to the listed substances in a Part of the Schedule).

[Please see the document for details.]

Discussion

Since there were no comments on the Bill as it was, the Chairperson suggested that the Committee could vote on the Bill the following day. 

Members had no objections.

The Chairperson confirmed that the Committee would vote on the Bill with a draft Committee report the following day. The draft report would be circulated that evening.

The Chairperson thanked Mr Robbertse.

Other Committee business

Adv Breytenbach asked about a meeting with Prof Muntingh. The available dates for November 2022 were 1, 2, 8, 10, 15, 17, 22, 23, and 24 November. She would email the Committee Secretary, and the Committee could decide which date was most suitable. She needed to get back to Prof Muntingh so those dates would not become unavailable.

The Chairperson asked the Committee Secretary to check if the Committee had the programme for the Budget Review and Recommendations Reports (BRRRs) ready.

Mr Vhonani Ramaano, Committee Secretary, said that the BRRRs would be in the first two weeks of October. After that, the Committee could consider other business.

The Chairperson asked Mr Ramaano to please prioritise the workshop with the professor. There was also another outstanding workshop with Justice Edwin Cameron.

Adv Breytenbach talked to Justice Cameron about the workshop, and they would settle on two or three dates to present to the Committee, probably by the following day. She observed that BRRRs took up the first two weeks of November. The Committee still had 17, 22, 23 and 24 November. She had sent the email to the Chairperson and Mr Ramaano.

Dr Newhoudt-Druchen asked if the BRRRs were in the first two weeks of October, and not November.

The Chairperson replied that the BRRRs would be during the first two weeks when the Committee returned for the new term, which would end in October/November. The Committee would prioritise the two workshops, because it agreed on them in 2021. The Committee would raise other issues the following week in its strategic plan internal meeting, where it would determine how it wanted to finalise the whole year.

The meeting was adjourned.

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