The recent Cannabis Phakisa Action Lab – convened by the Presidency and Department of Agriculture, Land Reform and Rural Development – brought together a diverse collection of stakeholders across civil society and government. Their task: to fast-track plans through open  and in-depth deliberation to accelerate unleashing the Cannabis Sector for our nation and its many citizens.

The Cannabis Phakisa closed on a relatively high note; for the first time in ages we felt hopeful that the change we have been fighting so tirelessly for is finally coming.

Hope – surely the most evil thing we can experience once our patience has been tested so relentlessly.

Letter from the Presidency, but then what?

The closing of the Cannabis Phakisa was followed by a Letter from the Presidency (23 June), outlining the goals set at the weeklong intensive. The core purpose of the Phakisa “was to secure much-needed policy coherence and agreement on a stronger programme of well-defined, time-bound and assigned activities across multiple government departments working in close collaboration with all stakeholders.”

Only, no-one has heard much since 23 June, least  of all on the  SAPS directive concerning  Cannabis arrests, promised for 30 June.

This predictable game of ‘hurry up and wait’ is merely a reflection again of the same latency displayed at the various Public Comments sessions hosted by the Portfolio Committee on Justice and Correctional Services with regard to the proposed Cannabis for Private Purposes Bill. The final sessions, hosted in May, were similarly followed by a promise that a public response would be heard from the Portfolio Committee. We are waiting for this, too.

According to the Parliamentary Monitoring Group, the Bill is still in process, with the last activity having been on 24 May 2023.

A bad sesh

Over the years, the Public Comments sessions have run in a sort of planned dysfunction. The art of annoying one’s opponent into foolish action takes mastery while serving the dual purpose of freeing one up of the laborious task of engaging with the provided evidence on how to correctly legitimise something criminalised in an era of gross human rights violations, both locally and globally.

The first sessions – held on 31 August, 1 & 2 September 2021 –  saw pertinent points raised on the general unconstitutionality of the Bill in its draft form, and presenters were promised that they would receive feedback in due course. This repeated at the second sessions, hosted on 24 May 2022 – with presenters alerted the Sunday night before – and the final sessions hosted over 23 and 24 May 2023.

Before the final round of Public Comments, presenters were asked to focus on the inclusion of Industrial Cannabis (“hemp”) in the proposed Private Purposes Bill. Few adhered to this, focusing instead on the numerous uses one may extract from a single Plant if arbitrary THC limits are of no concern.

The first and second rounds were vastly disparaging, while the final round held some promise. It was sadly also marred by a total disregard for good sense and sober addressing of the issues created by the Constitutionally flawed Bill.

Myrtle Clarke was cut short in her presentation, but we were able to bring her full presentation to the public. Thankfully, Myrtle’s input was well heeded at the Cannabis Phakisa – a labour for which fruits we are still waiting.

Over the two days of the final Public Comments, focus was drawn several times to how the Bill will need to pass with the 6th Parliament, which now only has about six months left to do what it had years to do.

The mounting pressures of the Portfolio Committee’s ineptitude at handling the drafting of the Bill is likely something that precipitated the Cannabis Phakisa. Admittedly, it would also not be ideal for the Bill to pass in its current state, and hurrying things along purely for the sake of it should not be an option.

Presence is a gift not easily received

Opening remarks were made by a somewhat delayed Minister of Agriculture, Land Reform and Rural Development, Thoko Didiza. She greeted the users of the Plant directly, acknowledging the legacy and rural communities and discussing the challenges the sector is facing. Didiza further recognised that while Cabinet had made a decision in 2019, following the 2018 ConCourt Ruling, that action had been slow to date.

One crucial point made by the Minister is the need for enabling legislation, highlighting that the Department of Health had already made moves toward rescheduling Cannabis to allow for this, something which was further deliberated on during the Phakisa.

Looking at Minister Didiza’s interactions with Cannabis over the years, one is reminded of the pilot project launched in the Eastern Cape in 1999 by the then Department of Agriculture – of which she was also the minister – and then MEC for Agriculture and Land Affairs, Max Mamase. While promises were made to open and develop an Industrial Cannabis industry, nothing has since come to fruition aside from the recorded but not widely disseminated data.

This pilot project was again mentioned in the Minister’s opening and helped to outline the seed propagation issues being faced alongside other challenges. Hopefully, we will not see more empty promises like those of the late 1990s.

Thoko Didiza promptly ended her time at the Phakisa by driving off after her opening remarks. It is disappointing that one of the most important people in this process chose to be absent in these crucial decisions. Thankfully, her chosen absence did not impede much.

However, it should be noted that the presence of junior officials rather than senior officials likely means that more steps will likely need to happen before we can fully realise the plans outlined over the course of the Cannabis Phakisa Action Lab.

The absence of the South African Police Services was further duly noted. While representatives did arrive on the second day, their presence had to be demanded by civil society representatives at the Phakisa.

Mirrors Mired in Mimicry 

Both the expected response on the Public Comments and the directive to end Cannabis Arrests following the Phakisa fell off the Parliamentary agenda in the same week they were meant to be released.

Both instances have contributed to eroding hope across the Cannabis Sector, which remains resilient in the face of ongoing injustices of persecution and prosecution.

To put it all very plainly, we are deeply frustrated that our inputs, and those of our allies, have been largely overlooked and never responded to over the past few years. We are annoyed that while the Constitutional Court gave Parliament two years to get this right,  we have been delayed by another three.

The Cannabis Phakisa stands as the first truly proactive engagement with community stakeholders, the experts, and civic organisations from Government’s side. Even actively participating in the Cannabis Phakisa through what felt like true, meaningful engagements – such as guiding changes in the language and stigma sticking to Cannabis – seems to be left with the same impotence we have come to expect from the tempering captivity of the Plant.

Honestly, for a Sector earmarked as one of fourteen priority options in the country, Cannabis does not seem exactly prioritised.

Where to now?

Fields of Green for ALL have made no bones about returning to court should the human and Constitutional rights of ALL South Africans with a relationship with the Plant not be met.

To close, I leave you with the letter Paul-Michael Keichel – part of our formidable Legal Team of Green at Cullinan & Associates Inc – wrote to the Portfolio Committee following the first day of the last round of Public Comments.

Dear Honourable Mesdames and/or Sirs,

Thank you for the opportunity to present over Zoom earlier today. I look forward to tomorrow’s sitting.

If I may be permitted to address you supplementally, hereby and in writing, on one apparent misconception?

• On the issue of ‘plant counting’ or upper limits (in respect of which you’ve already heard ad nauseum about how this is not done equally with tobacco and alcohol and constitutes a literal invasion – never mind limitation – of/on the right to privacy) one Hon. Member of your Portfolio Committee presented a general comment that your Committee was only meeting the mandate of the Constitutional Court in setting upper limits on private Cannabis.

• Indeed, paragraph 80 of the 2018 Prince Judgment reads “In the jurisdictions referred to above and in others included in the addendum, different amounts have been fixed as “small amounts”. In the present case, like the Judge in the High Court, I would leave the determination of the amount to Parliament”.

• In our submission, paragraph 80 ought to be correctly interpreted not to say that upper limits must be set, but instead that, if they are to be set, then it would be for Parliament (and not the Constitutional Court) to set them. Whether or not to set upper limits at all remains a question to be answered at the discretion of Parliament, whilst the Constitutional Court could never have crystal-ball-gazed and foreseen everything that would present as relevant lessons/considerations almost 5 years post its Judgment (hence why it is constitutionally proper to leave certain answers to Parliament, with all of its powers).

• The discretion of Parliament in this instance is, of course, qualified by section 36 of the Constitution, which I do not repeat here. But, in material summary, a codified upper limit, if any, would need to be underscored by reliable (scientific, statistical and/or criminological)  evidence  (the State shouldering the burden of providing it) that, inter alia:

• it served the legitimate purpose of preventing or mitigating an unacceptable harm to individuals or society;

• the enforcement of that upper limit through the criminal justice system did not do more harm to individuals or society than that prevented by the rights-limiting law; and

• as linked to the previous point, the same purpose could not be achieved through less-restrictive means.

• We know that the Constitutional Court declined to set upper limits in September of 2018 and that, per paragraph 15 of its Order, “Should Parliament fail to cure the constitutional defects within 24 months from the date of the handing down of this judgment or within an extended period of suspension, the reading-in in this order will become final”. It is now, almost 5 years post-Judgment, “final” that civilians are permitted to cultivate, possess and use cannabis in private, without limitation (meaning that setting upper limits and allowing for plant counting would be an ex post facto limitation on, amongst others, the right to privacy as now commonly understood and practiced).

• With respect, has the sky fallen in the last almost 5 years, during which we’ve all been ‘rooking boom’ to our hearts’ content? Has Cannabis abuse become more of a problem than alcohol and tobacco abuse (which you do not penalise through the criminal justice system)?

• A retort to the rhetorical para. 6 question, above, might be that paragraph 88 of the 2018 Prince Judgment reads “Dealing in cannabis is a serious problem in this country and the prohibition of dealing in cannabis is a justifiable limitation of the right to privacy” and that, in the exercise of Parliament’s discretion, anything above a certain amount cannot possibly be for personal and private use and that person must be dealing in cannabis (“a serious problem”). However, with respect, and mindful that it now appears clear that regulated dealing in Cannabis will soon be permitted, the crime of possessing Cannabis above threshold would be a presumption of illegal dealing created via the back-door, in circumstances where the case of S v Bhulwana, S v Gwadiso 1996 (1) SA 388 (CC) found such presumptions to be unconstitutional and thereby reinforced that the National Prosecuting Authority carries the burden in criminal trials of proving actual dealing (in this case, cultivation [for] and impersonal use outside of a private space).

• If the menace that a plant counting mechanism purports to mitigate/prevent is limited to the harms that befall individuals exercising their rights to cultivate and use Cannabis privately (which para. 7, above, establishes that it must be) then Parliament must ask itself (but then publicly answer) at least the following questions: –

• What is the harm that befalls a person who cultivates and possesses and uses above a certain amount of Cannabis that does not befall them, or is acceptably low, below that definite amount?

• Does this harm exceed the harms that befall abusers of tobacco and alcohol? If not, then why do we want to criminally prohibit this harmful behaviour, but not those more-harmful behaviours?

• Does a law preventing a person from cultivating, possessing and using above a certain amount of Cannabis actually serve to prevent/mitigate that unacceptable harm?

• On balance, and interlinked with the above questions, do the harms of exposing people to our criminal justice system (trauma – and the psychological, physiological and social ills that follow it) outweigh the harms of Cannabis abuse that we think that we are preventing/mitigating? If so, viewed holistically, are we actually preventing/mitigating harm in general?

• All considered, why can we not utilise medical and social interventions, instead of our criminal justice system, to prevent/mitigate the harms of Cannabis abuse (as already called-for in our National Drug Masterplan 2019 – 2024 and by the United Nations’ High Commissioner for Human rights, Volker Türk, here: https://www.youtube.com/watch?v=TrluTYh0-js)? 

You have been respectfully cautioned before that individuals and members of civil society organisations are primed to challenge the Bill in Court if, in its final form, it retains its presently unconstitutional elements. Those challenges will (necessarily) involve section 36 analyses and, also mindful of section 1(a), the State proving that the above questions were considered and answered during this law-making process. I would submit that this realisation ought to invite this Honourable Committee’s grappling with them now, instead of later being revealed to have relegated them to the bottom drawer. I would also confidently anticipate that this analysis will have your Committee drop the concept of upper limits and plant counting on/of private Cannabis and I record my considered opinion that this would accord with both your general constitutional and legal obligations, as well as your mandate from the Constitutional Court. It would, no doubt, also serve to clear many objections from civil society.

 I hope that this supplementary communication will prove constructive and will be well-received by you in the spirit of working together more closely presently, instead of arguing about it all later.

With sincere thanks and kind regards,                  

Paul-Michael Keichel  BA, LLB (Rhodes)

Attorney