The department of justice was not empowered to introduce legislation dealing with the commercialisation of cannabis, as that fell within the domain of other departments such as health, agriculture, and trade, industry and competition.
On Tuesday, the department of justice’s legal adviser, Sarel Robbertse, gave the department’s response to public comments on the Cannabis for Private Purposes Bill, in a briefing to parliament’s justice and correctional services committee.
Critics of the bill who support the commercial production of cannabis argue that it is a missed opportunity and that either a comprehensive one dealing with all aspects of cannabis use should be prepared or the existing bill amended to cater for it. They refer to President Cyril Ramaphosa’s vision expressed in his state of the nation address (Sona) for the cannabis industry to create more than 130,000 new jobs.
The amended bill says commercial cannabis activities for recreational use “are authorised subject to the enactment of national legislation”.
Robbertse noted that the bill gave effect to the judgment of the Constitutional Court, which decriminalised the use of cannabis by adults, who can be in possession of cannabis in private for their personal consumption in private, and can cultivate cannabis in a private place for personal consumption. The judgment said dealing in cannabis was a justifiable limitation of the right to privacy.
The bill puts limitations on the quantity of cannabis plants that may be cultivated to curb dealing in cannabis. It also limits the amount of cannabis that may be possessed for personal use and criminalises conduct that is typically associated with dealing in cannabis. Robbertse said the limitation on the quantities of cannabis plants that may be cultivated was required to restrict cannabis to personal use.
“It is acknowledged that commercialisation of cannabis for recreational purposes will stimulate the economy significantly,” Robbertse said. “Other legislation must be promoted to give effect to the intended commercialisation of cannabis. The department of justice and constitutional development cannot promote legislation that provides for commercial activities relating to cannabis, since such initiative falls within the mandate of other departments,” Robbertse said.
The same response was given to criticisms that the bill entitles individuals to use and cultivate recreational cannabis, yet it does not make provision for individuals to legally obtain recreational cannabis and recreational cannabis products. Critics said the continued criminalisation of the sale of recreational cannabis would only serve to fuel the existing and growing illicit market thereby putting ordinary law-abiding adults at risk of contravening the law or worse, using illegal and risky substances in an attempt to exercise their legal rights to use cannabis for recreational personal use.
Responding to the criticism that the bill criminalises the use of cannabis, Robbertse clarified that the offences contemplated in the bill aimed to address the possible dealing in cannabis and to protect others against the harms associated with cannabis use. Many countries that opted for commercialisation of cannabis had similar provisions. “Cannabis regulation is necessary to protect others against the harms associated with cannabis,” he said.
Complaints were made during public hearings on the bill that there had been a lack of participation and consultation to which Robbertse said that “although the bill was not made available for comments before its introduction in parliament, ample opportunity has been afforded for public participation during the parliamentary process”.
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