It is 1954 days since the Constitutional Court of South Africa judged that the prohibition of the private use, possession and cultivation of Cannabis within private spaces is unconstitutional.

South Africa is in the throes of our FIFTH iteration of the Cannabis for Private Purposes Bill (CFPPB). Fields of Green for ALL submitted their comments to the National Council of Provinces (NCOP) on Friday 19 January 2024.

Together with everyone else who is following this process carefully and submitting comments for each round, there has been a flurry of “versions” doing the rounds. For the record, here is the latest version we commented on: CFPPB (4 Nov 2023) FINAL TO NCOP

Fields of Green for ALL’s submission: FGA CFPPB Comments for NCOP 18 January 2024

The current process of feedback to the National Assembly from the NCOP does not mean that the bill will change before being sent to our president for his signature. It is only when Cyril signs it that it becomes law. Only then can the Drugs and Drug Trafficking Act of 1992 be changed. Cannabis remains, technically, illegal – except for personal use, possession and cultivation within private spaces, of course!

AND… Last week the Minister of Health published proposed changes to the Schedules within the Medicines Act…

Proposed changes: Schedule change 4_5854870156295018684[1] Medicines Act 180124

A great explanation of how the current processes are set to unfold has been outlined by Anthony Rees of the Traditional and Natural Health Alliance, one of Fields of Green for ALL’s long time Local Affiliate Organisations.

“The Minister of Health, on the recommendation of SAHPRA, has published a proposed change to the Schedules to the Medicines and Related Substances Act (accessible at http://www.gpwonline.co.za/Documents/Government/50001%2015-1%20Health.pdf ; Government Notice No. 4251, Government Gazette No. 50001, 15 January 2024). Comment is requested within 2 months. This is a somewhat unusual step, as changes to the Schedules are not usually published for comment, but for immediate implementation.

The proposed changes relate to the tetrahydrocannabinol inscription in S6. If accepted, the new inscription would read as follows:

Tetrahydrocannabinol, except

  1. in raw cannabis plant material cultivated and possessed in accordance with a permit issued in terms of the Plant Improvement Act (Act 11 of 2018) and processed products manufactured from such material, intended for agricultural or industrial purposes, including the manufacture of consumer items or products which have no pharmacological action or medicinal purpose, or
  2. when raw cannabis plant material is cultivated, possessed, and consumed by an adult, in private for personal consumption.

The key difference is that the responsibility for setting a limit on the THC content in “low-THC cannabis” (also referred to as “hemp”), intended for agricultural or industrial purposes, will lie with the Minister of Agriculture, Land Reform and Rural Development, in terms of the Plant Improvement Act. The previous limit on the THC content of processed products (“processed products made from cannabis containing 0,001 percent or less of tetrahydrocannabinol”) is also removed.

The exception for “adult use” remains, which would need to be read with the Cannabis for Private Purposes Act, once that is passed. 

The Bill was passed by the National Assembly in November 2023 (as Bill 19B of 2020; https://static.pmg.org.za/1/B19B-2020Cannabis_for_Private_Purposes.pdf ) and then referred to the NCOP (see https://pmg.org.za/bill/965/ ). 

When the NCOP Select Committee on Security and Justice was briefed in November 2023 (https://pmg.org.za/committee-meeting/37987/ ), they decided as follows: 

“The Cannabis for Private Purposes Bill was crafted to govern cannabis for private use by adults in private. The Bill was in line with a Constitutional Court judgment, and was in line with the Constitution. The Select Committee would advertise the Bill for public comments, and then further deliberate on the public inputs.” 

However, as this is a section 75 Bill, the role of the NCOP is limited (see https://pmg.org.za/bills/explained/ ): “An ordinary Bill that does not affect the provinces can only be introduced in the National Assembly (NA). Once it has been passed by the NA, it must be sent to the National Council of Provinces (NCOP). In this case, delegates in the NCOP vote individually and the Bill must be passed by a majority of delegates present. If the NCOP rejects a Bill or proposes its own amendments, the Bill is returned to the NA which will pass the Bill with or without taking into account the NCOP amendments or it may decide not to proceed with the Bill. The NCOP’s role in Bills that do not affect the provinces is therefore a limited one. It can delay a Section 75 Bill, but it cannot prevent it from being passed.”

Thank you Anthony for your useful insights!