Introduction
On Tuesday, 14 November 2023, South Africa's National Assembly passed the Cannabis for Private Purposes Bill.
The Bill - originally published on August 7, 2020, in the Government Gazette - is now forwarded to the National Council of Provinces (NCOP) for concurrence.
It was presented before the National Assembly by the Portfolio Committee on Justice and Correctional Services and supported by most political parties (ANC, DA, IFP, EFF, NFP, PAC), only being opposed by FF+ and ACDP.
If NCOP makes no changes, the Bill will go to the President for assent; otherwise, it will return to the National Assembly.
Upon presidential assent, the Bill will become an Act and law.
Report of the Portfolio Committee on Justice and Correctional Services on the Cannabis for Private Purposes Bill
The Portfolio Committee on Justice and Correctional Services (“the Committee”), having considered the Cannabis for Private Purposes Bill [B 19 - 2020] (National Assembly - section 75), referred to it and classified by the Joint Tagging Mechanism (JTM) as a section 75 Bill, presents the Bill [B 19B - 2020]. The Committee reports further, as follows:
1. In Minister for Justice and Constitutional Development and Others v Prince 2018 (6) SA 393 (CC) (“Prince judgment”), the Constitutional Court declared the following legislative provisions unconstitutional, as they amount to an impermissible limitation of the right to privacy:
1.1 Section 4(b) (possession) and section 5(b) (dealing on the basis of cultivation) of the Drugs and Drugs Trafficking Act 140 of 1992 (the Drugs Act), read with Part III of Schedule 2 of that Act; and
1.2 Section 22A(9)(a)(i) of the Medicines and Related Substances Control Act, read with Schedule 7 of Government Notice No. R 509 of 2003.
2. The Court suspended the order of invalidity for 24 months for Parliament to correct the constitutional defects by 17 September 2020. The Court provided a reading-in provision that ensures that an adult will not be guilty of a criminal offence if they use, possess, or cultivate cannabis for their personal consumption in private, which continues to apply.
3. On 1 September 2020, the Bill was introduced and referred to the Committee for consideration and report.
4. The Bill was introduced with the intent to address only the Prince judgment, which broadly focussed on considerations relating to the right of privacy as far as the use of cannabis by adults for private purpose.
5. Due to the complexity of the subject matter, the Committee has facilitated extensive public consultation processes and deliberations with numerous stakeholders.
6. The Bill as tabled and deliberated on by the Committee up until its meeting of 12 September 2023 did not look beyond the adult-centred focus of the private purpose use of cannabis. However, the Committee was called upon by the Department of Justice and Constitutional Development to consider extending the scope of the Bill to also accommodate considerations relating to the best interest of the child, as the processing of children within the criminal justice system in relation to cannabis offences was found unconstitutional in Centre for Child Law v Director of Public Prosecutions, Johannesburg and Others [2022] ZACC 35 (Centre for Child Law judgment):
6.1 On 29 September 2022, the Constitutional Court, in Centre for Child Law judgment, confirmed the order of the High Court, which declared section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 to be inconsistent with the Constitution and invalid to the extent that it criminalises the use and/or possession of cannabis by a child.
6.2 The Constitutional Court suspended the operation of the order of constitutional invalidity for a period of 24 months for Parliament to finalise the legislative reform process. The date by which the defect must be corrected by Parliament is 28 September 2024.
7. Previous deliberations and public submissions called for by the Committee on the Bill were to the Prince judgment context and considerations only. To accommodate the Centre for Child Law judgment in the Bill, the Committee sought in terms of Rule 286(4)(b) of the National Assembly Rules and received permission from the National Assembly to extend the subject of the Bill to address issues relating to the best interest of the child (in compliance with the Centre for Child Law judgment), in addition to the privacy right protection reflected in the Bill in relation to the private use, possession and cultivation of cannabis by adults in a private space (in compliance with the Prince judgment).
8. The Bill, as presented by Committee, proposes to:
• Respect the right to privacy of an adult person to use or possess cannabis;
• Regulate the use or possession of cannabis by an adult person;
• Provide for an alternative manner by which to address the issue of the prohibited use, possession of, or dealing in, cannabis by children, with due regard to the best interest of the child;
• Prohibit the dealing in cannabis;
• Provide for the expungement of criminal records of persons convicted of possession or use of cannabis or dealing in cannabis based on a presumption;
• Amend provisions of certain laws; and
• Provide for matters connected therewith.
9. The Committee notes that the cannabis and hemp sector is one of fourteen priority sectors identified by Government to secure investment, job creation and support for sustainable rural livelihoods. The Committee hopes that the Bill paves the way, as a first step, for the development of legislation to address the regulation of cannabis for commercial purposes.
Summary
• The Cannabis for Private Purposes Bill [B 19B - 2020] is presented by the Portfolio Committee on Justice and Correctional Services.
• Constitutional Court's Prince judgment ruled certain sections of the Drugs Act and Medicines Act unconstitutional, breaching privacy rights.
• Invalidity order suspended for 24 months, with a temporary provision shielding adults using, possessing, or cultivating cannabis privately from prosecution.
• The Bill, introduced on 1 September 2020, is specifically meant to address the unconstitutional aspects identified in the Prince judgment.
• The Committee engaged in extensive consultations due to the complexities associated with cannabis regulation.
• Initially, the Bill only covered adult private use but was expanded to consider children's best interests after the Centre for Child Law judgment.
• The Centre for Child Law judgment declared criminalisation of child cannabis use/possession unconstitutional and set a 24-month deadline for legislative reforms.
• The Committee was permitted by the National Assembly to include child welfare provisions in the Bill, complementing the adult privacy rights addressed earlier.
• The Bill seeks to:
o Uphold adult privacy rights in cannabis use and possession.
o Regulate adults' cannabis use and possession.
o Provide non-criminal approaches for addressing children's cannabis-related issues.
o Prohibit cannabis dealing.
o Enable expungement of convictions related to cannabis possession/use or dealing under certain conditions.
o Modify existing legal provisions accordingly.
• The cannabis and hemp sectors are recognised as key for investment and job creation, with this Bill seen as a step toward broader commercial cannabis regulation legislation.
Meeting of the NCOP Security and Justice Committee on 25 January 2024
The NCOP Security and Justice Committee convened on 25 January 2024 to discuss the Department of Justice and Constitutional Development's responses to public submissions on the Cannabis for Private Purposes Bill.
The Department addressed 46 submissions indicating that the Bill focuses on decriminalising cannabis for private use and cultivation within specific quotas set by the Minister of Justice, not commercialisation.
It emphasised the Bill's applicability to all racial groups, prohibitions on selling cannabis, and future plans for national legislation on commercialisation and regulation.
Deputy Minister Jeffrey and Mr. Mokulubete from the Department provided insights into the Bill's intent to conform to constitutional directives and court judgments by decriminalising private cannabis use.
They addressed concerns on fairness, cultivation rights, private social clubs, enforcement, and protections for children, highlighting the Bill's objectives to balance regulation with individual freedoms.
Significant points included clarifications on the non-commercial nature of the Bill, legal cultivation quotas, enforcement mechanisms against potential police corruption, and the consideration of public and stakeholder feedback in shaping the Bill.
The Bill aims to align with Constitutional Court judgments while ensuring protection, especially for children, from exposure to cannabis and maintaining public safety and health standards.
Dr. Barbara Loots from Parliamentary legal services affirmed the Bill's correct tagging under section 75, focusing on decriminalising private cannabis use and not addressing commercial activities.
The extensive public consultation process was defended, and the focus on private use, as mandated by court judgments, was reiterated.
The committee, acknowledging the thorough discussions and responses, decided to defer further deliberations to the next meeting, aiming for a comprehensive understanding and potential adoption of the Bill.
Summary
• Focus: The Department of Justice and Constitutional Development's responses to public comments on the Cannabis for Private Purposes Bill.
• Submissions Received: The Department addressed 46 submissions, clarifying that the Bill:
o Does not cover the commercialisation of cannabis.
o Allows for private cultivation within quotas set by the Minister of Justice.
o Applies universally without racial exclusion.
o Strictly prohibits the sale of cannabis.
o Plans to address private social clubs, job creation, and regulation in future legislation.
o Includes protections for children against misconceptions of legal cannabis use.
• Deputy Minister Jeffrey's Insights:
o Highlighted the Bill's roots in constitutional case responses.
o Stressed decriminalising cannabis by excluding it from the Drugs and Drug Trafficking Act.
o Clarified the Bill's focus on decriminalising private use and cultivation.
• Key Issues Discussed:
o Regulatory framework comparison with alcohol.
o Fairness and equality concerns.
o Rights and restrictions about cannabis cultivation, especially for black communities.
o Handling cannabis use in the South African National Defence Force.
o Clarifications on cultivating cannabis and preventing children's exposure.
• Legal Advisor Remarks:
o Addressed concerns on fairness, enforcement, potential police corruption, and children's safety.
o Emphasised balance between regulation and individual freedoms, focusing on the Bill's adherence to the Constitutional Court judgment.
o Clarified as correctly tagged under section 75 for decriminalising private cannabis use.
o Defended the public consultation process.
• Conclusion:
o Acknowledgment of detailed presentations and responses.
o Decision to defer further deliberation to the next meeting for comprehensive understanding and consideration.