The Constitutional Court Ruling
In a unanimous judgment written by Zondo ACJ, as he then was, the Constitutional Court declared that;
- Section 4(b) of the Drugs Act was unconstitutional and, therefore, invalid to the extent that it prohibits the use or possession of cannabis by an adult in private for that adult’s personal consumption in private;
- Section 5(b) of the Drugs Act was constitutionally invalid to the extent that it prohibits the cultivation of cannabis by an adult in a private place for that adult’s personal consumption in private; and
- Section 22A(9)(a)(i) of the Medicines Act was constitutionally invalid to the extent that it renders the use or possession of cannabis by an adult in private for that adult’s personal consumption in private a criminal offence.
The Constitutional Court suspended its order of invalidity for a period of 24 months (18 September 2018 to 18 September 2020) to give Parliament an opportunity to correct the constitutional defects in the two Acts.
Cannabis Development Council of SA Position
We are advocating for a single cannabis bill to regulate the cannabis industry that is organised by a Cannabis Development Agency or Ombudsman that is driven from an African viewpoint of understanding the natural resource that we historically have at our disposal and how we can best unlock this for the benefit of our people and country.
- Our long history of illicit cannabis production and export, puts us in a strong position to develop a local cannabis market that unlocks the entire value chain, creates jobs, stimulates economic growth, generates substantial tax revenue for the fiscus and provides cheap health care solutions for our people.
- Advocating for a rational scientific and rural and urban agricultural based approach to cannabis legislation to benefit all South Africans
- We envisage the sacred plant playing an important role as South Africa’s primary reconstruction and development agent to put us at the forefront of the rapidly emerging global, multibillion-dollar cannabis industry worldwide and the African continent stand to benefit immensely.
Key Policy Elements:
It is imperative to state categorically that in its form the Cannabis private use bill (2020) is unconstitutional, irrational and it has omitted the consultation with all stakeholders during the drafting phase amidst the COVID19 pandemic. We must therefore urgently request the bill to be withdrawn and a proper working group for drafting be established as well with new time frames to allow public consultation – the duty to consult.
We therefore proposed and suggest the following:
African Based Cooperative Industrial Cannabis
- To be regulated by the Department of Agriculture where it is treated as an agricultural commodity no longer requiring special permits to be grown and returns the plant to a cash crop status.
- To be regulated at the point of processing rather than as a crop in the ground.
- To enable the utilization of existing genetics that have been grown in SA for hundreds of years that been naturalised, drought tolerant and currently being grown (illicitly) by small farmers all over the country (as mentioned by the President in his SONA 2020).
- To allow African emerging small farmers to immediately participate in the rapid industrialisation of cannabis utilising their traditional genetics.
Cannabis for Medical Purposes and Indigenous Knowledge Medicine
- To urgently improve access to cannabis pharmaceutical and complementary medicine allowing for a transparent fast-tracked process that opens the market for all.
- To allow access to cannabis for medicine & preventative health care for all those that seek to benefit from the healing attributes of the plant at low price points so as to be available to the majority of our people.
- To establish enabling cannabis healthcare / wellness regime where pharmaceutical grade medical cannabis for specific conditions is controlled and administered through SAHPRA
- To establish enabling cannabis healthcare / wellness regime for complementary health care productsfor non-specific conditions use would fall under traditional and natural health products regulations.
- To establish a separate and new Cannabis Agency as mandated by the international narcotic treaties for countries that allow the use of cannabis for medical reasons.
- This agency would be solely independent and responsible for cannabis and separate from SAHPRA and the Department of health. It must be a hybrid agency with communities of practice and experts in the cannabis field.
- To shift in the current SAHPRA medical licensing approach which is onerous and focused on export towards developing a local market for medical cannabis.
- To empower and allow cannabis for health/wellness available through a doctors’ or traditional healers’ recommendation which would entitle a person to become a recognised medical cannabis user and have access to medical cannabis products, including flowers, extracts, edibles and vaporisers.
- To motivate for research and development based on efficacy, including indigenous knowledge and regional genetics to maximise South Africa’s competitive advantage.
- To encourage and initiate academic community-based medical cannabis research exploring new cannabis medicines and applications and soliciting international and national research & development funding within all higher institutions in South Africa .
Private / Recreational / Responsible Adult Use
A need to allow all adult citizens access to cannabis irrespective of whether they can grow, use or possess it in their own private space.
Zondo ACJ took the view that it should be left to Parliament to decide on the quantity of cannabis that an adult person may use, possess or cultivate in order for it to amount to “personal use”. He was of the view that the Court would infringe the doctrine of separation of powers if it determined the amount itself.
An imperative to establish markets for seed and sale of flower and cannabis product to ensure access for all.
- The constitutional court found the existing criminal cannabis laws to be unconstitutional and indicated that they should not be regulated by the criminal justice system rather by parliamentary process that will include public participation.
- Further unanimously ruled that the personal use of cannabis is not a criminal offence in private
However, in order to ensure that people who fall into the same category as Mr Prince and his co-applicants receive effective relief, Zondo ACJ granted interim relief by way of a reading-in of the two Acts to ensure that, during the period of suspension of invalidity, it would not be a criminal offence for an adult person:
- to use or be in possession of cannabis in private for his or her personal consumption in private; and
- to cultivate cannabis in a private place for his or her personal consumption in private.
- However this is limiting in that it allows only those with access to private land the right to grow cannabis, thereby excluding the vast majority of our/Afrikan people.
- The law needs to accommodate and regulate a reasonable trade in recreational cannabis so as to enable people without access to land the right to still use cannabis in the privacy of their homes.
- A need to expand the Constitutional Court ruling of 2018 based on the right to privacy, to include the ability to cultivate, extract, process, manufacture and sell cannabis-based products for recreational use, along the same lines that alcohol and tobacco are currently regulated.
- It is strategic for the state to formalise the existing illicit market and allow it to be taxed – the recreational cannabis market is a massive potential revenue generator for the fiscus in the struggling economy of South Africa.
- The bill failed to consider the enormous potential tourism opportunities from legal recreational cannabis market opening our long established growers in the ‘dagga belt’ to tourism income opportunities from visitors wanting to experience traditional growing operations and world famous brands like Durban poison and Transkei rooibaard.
- To immediately establish guidelines for the SA Police Service to operate under that protect cannabis users rights and stop unlawful arrests and police brutality towards marginalised communities that often face the brunt of police “dagga” operations.
Green Restoration and Environmental Development Aspect
Living in the age of green revolution – the departed Baba Vusamazulu Credo Mutwa once said nature is the ancestral cycle of life:
- Cannabis is a South African natural resource and should be managed in an innovative new social compact that recognises the potential of this high value cash crop that will eradicate poverty and hunger in South Africa and the entire continent of Africa
- Cannabis aligns to the National Development Plan 2030 by unlocking the economic prosperity of the country with an environmental “bottom line” as the foundation for economic and social policy that allows us to address environmental security and the growing impact of climate change.
- There is a need to develop proactive and empowering regulations to allow cannabis to restore the dignity of ordinary people, creating jobs for meaningful work to grow and manufacture their own, food, fuel, fibre, shelter and medicine in a green sustainable way.
As our country emerges from post-apartheid atrocities and cultural hegemony toward the sacred cannabis plant, we reiterate and remind the government of South Africa to refrain and stop treating cannabis users as criminals and drug peddlers, all criminal records for cannabis related crimes must be expunged with provisions for a social equity programme for victims of the pernicious “dagga act”.
Recommendations towards the Department of Justice and Correctional Services Portfolio Committee and the Ministry under Hon Ronald Lamola:
- Immediate withdrawal of the Cannabis Private Bill (2020), for further consultation on the conceptual framework and inclusion of experts in the drafting committee;
- To determine the reasonable time of public consultation beyond the normal parliamentary presentation and explore taking parliament to the people (public hearings in all provinces);
- To respect and comply with Constitutional Court Judgement of 2018 directives and the principle of the duty to consult;
- To rebuke and summon the Minister of Police Services on their conducts in handling the Cannabis farmers raid and harassing the Rastafarian community;
- To engage and summon inter-ministerial committee and all affected provincial portfolio committees on Cannabis about their plans on cannabis health, agricultural, socio- economic and cultural purpose
Issued by Ras Gareth Price, Chairperson Cannabis Development Council of SA