Cannabis for Private Purposes Bill: commercial hemp proposal

Meeting report

Apologies were noted from Adv Breytenbach and Mr Dyantyi who was attending a Rules Committee meeting.

Mr Sarel Robbertse, Senior Chief State Law Advisor, took the Committee through the new proposal on commercial hemp activities.

Commercial Hemp Activities
Clause 10B(2)(c)
Affect the area of responsibility of any other Cabinet member or MEC, make the regulations in consultation with the Cabinet member or MEC.

The Chairperson asked Mr Robbertse why this clause could not be amended to making a specific reference to the MECs for Agriculture given their executive role in provinces.

Mr Robbertse explained that the designation function by convention started from the national office which directed the power to provincial government. It was then up to the provincial government to decide which branch of authority would be assigned at provincial level.

Ms Y Yako (EFF) sought clarity on the Minister’s power in making regulations in subsections (1) and (2). She asked if it would be more appropriate that Parliament should be involved in the consultative role as provided in those two subclauses as well.

Mr Robbertse replied that usually all subordinate regulations made by the executive branch of government must be referred to Parliament for approval. Furthermore, subsection (3) did make provision for that specifically making it an obligation that all the regulations must go through Parliament.

Clause 10B(2)(c)(4)
Except where it is inconsistent with the context of or clearly inappropriate, the Minister may by notice in the Gazette declare the provision of the Fertilizers, Farm Feeds, Agricultural Remedies and Stock Remedies Act, 1947 (Act No. 36 of 1947), the Plant Improvement Act, 1976 (Act No. 53 of 1976), the Agricultural Research Act, 1990 (Act No. 86 of 1990), the Agricultural Product Standards Act, 1990 (Act No. 119 of 1990), the Agricultural Produce Agents Act, 1992 (Act No. 12 of 1992), the Marketing of Agricultural Products Act, 1996 (Act No. 47 of 1996), and Foodstuffs, Cosmetics and Disinfectants Act, 1972 (Act No. 54 of 1972), applicable to an activity contemplated in subsection (1).

Mr Swart sought clarity on subsection 4 of this proposed amendment and pointed out that the Minister can make regulations in terms of the Plant Improvement Act (PIA) and permits are being issued accordingly. He questioned if the clause is still needed because this process is already in place. He wanted to understand the linkage between the PIA and this Bill.

Mr Robbertse replied that the current permits issued in terms of the PIA cover all the plants and processes including the dealing of hemp. However, this Bill is more specific in addressing hemp commercialisation of which the purpose is not covered in the PIA.

Mr Robbertse indicated that the A list and B version of the Bill should be ready by 29 November.

Clause 10(c)(2)
Any regulations made under subsection (1) may provide that any person who contravenes or fails to comply with a provision thereof or a term or condition of a permit granted under subsection (1)(e), shall be guilty of an offence and liable on conviction to a fine of R100 000, or to imprisonment for a period not exceeding 12 months.

Mr Swart was concerned if the penalty amount set at R100 000 or maximum 12 month imprisonment which was applied to financial institutions would be applied to individuals as well. He asked if this provision was consistent with or had a linkage with the similar regulation in the Plant Improvement Act.

Mr Swart asked if the THC level for hemp at 0.2 percent was compatible with the requirement prescribed in the PIA.

Mr Swart sought confirmation if Mr Robbertse was correct in saying that if the THC exceeds 0.2 percent, it would fall under the scope of the Medicines and Related Substances Act.

Mr Swart wanted to understand the overall linkages between this Bill, the Medicines Act and the Plant Improvement Act.

Mr Robbertse replied that in terms of Schedule 6 of the Medicines Act, anything with THC level above 0.01 percentage for human consumption is regulated by the Medicines Act. If it is for industrial or other purposes, the THC content should not exceed 0.02 percent. Members must distinguish the difference between the medicinal and the industrial cannabis uses. The standards being applied to cannabis for medicinal purpose are perhaps 500 times more stringent than those being used for cultivation and commercial purposes. The contravention of those regulations could result in imprisonment of up to ten years.

Mr Robbertse said that the sanctions for recreational use of cannabis have been scaled down substantially. The relevant alcohol legislation and its penalties were the main references upon which he determined the fine amount. He deliberately had increased the fine amount to R100 000 because of the concern that it would mainly be businesses which would be involved in the contravention. The Committee probably will never see anyone in prison as a result of this clause. The alcohol legislation had also set its fine amount quite high. If it was an individual case…

Before Mr Robbertse could complete his sentence, the Chairperson prompted if more discretion should be left to the court to decide. He suggested that the Bill should rather state that the fine amount should not exceed R100 000. Although he understood that the clause was to mainly deal with medium- to large businesses, the Committee must also be mindful of small business people who would be trading in the cannabis industry. Those people may financially not be in a position to pay R100 000.

Ms N Maseko-Jele (ANC) supported the Chairperson’s view.

Mr Swart said that he was satisfied with the response. He agreed with the Chairperson.

Ms Maseko-Jele said that South Africa was already facing a challenge with an overload of prisoners. Hence, she was uncertain about the sentence of 12 months and believed that it needed re-consideration. She pointed out that those people had just started their cannabis business. She suggested replacing the 12-month sentence with six months.

The Chairperson noted that the Committee needed to do a thorough review of the whole sentencing regime. He recalled the Committee’s engagement with Judge Cameron who also called for the decongesting of prisons. The key of Judge Cameron’s discussion was that legislators needed to be more lenient with some of the sentencing of certain types of crimes, especially those which are not of violent nature. He was of the view that the maximum sentencing for contravention of this Bill should not exceed twelve months.

That concluded the discussion of the day with Mr Robbertse on the Cannabis for Private Purposes Bill.

Committee discussion on way forward
The Chairperson thanked Mr Robbertse and Mr Du Preez for their hard work and suggested that the Committee should endorse them being elevated to senior counsel status.

The Committee Secretariat indicated that the next Committee meeting on this Bill was 29 November.

Dr Barbara Loots, Parliamentary Legal Advisor, interjected and informed the Chairperson that her team had not seen those provisions until this morning so needed more time. She asked for the Committee’s indulgence to defer its comments on the Bill until the first meeting of 2023. She told the Committee that her team had not discussed the implications of these amendments on the Bill.

Mr Swart appreciated the work of Parliament's Legal Services and fully understood that it was under-staffed. But he indicated that the Committee should rather allow Legal Services time to see if it could be done before 29 November.

Ms Maseko-Jele noted the Legal Advisor's input and also supported Mr Swart’s suggestion. But she also pointed out that the issue at hand on the Bill was one of great importance. The Committee also had other Bills to finalise and was under a lot of pressure. Committee members were working tirelessly and overnight in order to get things done. She felt that the engagement is an internal matter between the Department and Parliament's Legal Services and should not affect the Committee’s schedule.

Ms Christine Silkstone, Committee Content Advisor, expressed her concern that the Committee researchers had not yet had a chance to examine how these provisions would fit into the new scheme of things. Although she fully understood the urgency and Member’s hope to get the Bill finalised, she regretfully had to inform the Committee that it was very unlikely that the support staff will have had checked both the A list and B Bill by next week. In addition, the concern on the process issue she described as time-consuming. Finally, she pointed out that from the support staff side they just wanted to ensure that the Bills which were passed were up to standard.

Both the Chairperson and Ms Maseko-Jele asked Ms Silkstone to clarify what those process issues were.

Ms Silkstone replied that the research team needed to double-check a lot of the issues in the Bill such as sentencing which Members had just raised, the coherence of the Bill, etc. At this stage, she could not foresee if those issues would be big or small. The research team had not yet had an opportunity to work through the Bill as a whole. What she had given Members were just her initial thoughts when she skimmed through the Bill this morning and her points might not be valid.

Ms Maseko-Jele said that she was confident in the experience and efficiency of Ms Silkstone, Mr Robbertse and the legal team. However, she was reluctant to accept the request and questioned if the Committee could afford to defer the Bill to next year. She noted the concerns which Ms Silkstone had mentioned and asked if those concerns could really be that serious. The Committee has been working with Mr Robbertse for quite some time now. She suggested Ms Silkstone and Dr Loots raise those concerns directly with Mr Robbertse and the legal team. From their responses, she almost felt that the support staff seemed to be new to the job.

Mr Swart said that he had sympathy for the Committee researchers and parliamentary legal advisors because those proposed amendment clauses had been received way too late. This could not have given them much time to deliberate thoroughly on the Bill. The Committee should also be mindful of the possible litigation that would be brought by the cannabis industry should they not be careful with the Bill. The industry had already indicated that it rejected the Bill and threatened to take it to court. Given that, he believed that it would be in everyone’s interest to allow Legal Service and the researchers a bit of extra time for them to properly do their work. He suggested that the Committee should just play it by ear and decide how much work they could get through by next week Friday 2 December.

Mr W Horn (DA) agreed. He understood that although the Committee might think that it had come to the end of the process, this process for Parliamentary Legal Services and the Research Team must be allowed to unfold naturally and should not be rushed so they could fully examine the implications of those clauses. The Committee could find out about the progress at the 29 November meeting.

The Chairperson expressed concern that today was 23 November and not all the parties concerned had had sufficient time to look and apply their mind to the Bill. He was not optimistic that Parliamentary Legal Service and the Committee’s research team would have come up with a set of satisfactory inputs on the Bill even by 29 November. However, he also agreed that the Committee cannot just give them an indefinite blank extension. Dr Loots and Ms Silkstone needed to ensure that there would be meaningful engagements between them and the Department. Then the Committee would meet on 29 Novemner to decide the plan of action. Everyone must be fully aware that the Committee was running against time here because it would be facing a number of outstanding Bills in 2023.

The Committee agreed to the Chairperson’s proposal.

The Chairperson informed Members that he had also received a letter from Committee member, Mr Engelbrecht, about the statement made by the Department about the release of the former President. He suggested that since Mr Dyantyi is back in the Committee until the 2 December, this matter should be referred to the subcommittee chair to process.

The proposal was accepted.

The Chairperson explained to Members that the 21 and 22 November workshop did not take place because the workshop presenter had been bitten by a dog. The workshop would be re-scheduled to next year.

The Committee agreed to meet on 25 November to receive a report from the National Prosecuting Authority and then deliberate on the Hate Crime Bill.

The Chairperson adjourned the meeting.