This past week saw South Africa make great strides in its commitment towards opening up the country’s Cannabis economy. From 19 to 23 June 2023, the Department of Agriculture Land Reform and Rural Development together with the Presidency, convened a Cannabis and Hemp Phakisa Action Lab. The Cannabis Phakisa was attended by more than 100 participants representing stakeholders from various communities, national and provincial government, the business and labour sectors, scientists, legal experts and other key stakeholders.
According to the press release issued by the president Friday night, 23 June 2023, the purpose of the Cannabis Phakisa was to create cohesion and agreement relating to policy changes needed, strengthened by definitive and assigned activities with strict time limits to be enforced. Despite clear requests to the contrary, the Cannabis Phakisa was subjected to grandstanding by individuals failing to recognise and act for the greater good of the Cannabis plant and its communities, including several uninvited representatives who forced their way into the closed meeting.
From the below agenda, circulated by non-attending and unrepresented members of the community, key stakeholders and policy makers such as Garth Strachan, Cullinan and Associates, SAHPRA representatives and other industry leaders provided input and facilitated the formation of a roadmap for immediate and urgent implementation.
Biggest Outcomes Achieved
Subject to final publication from the Presidency, a few items have been earmarked for action.
1. New SAPS directives to be issued on Cannabis arrests
The Cannabis Phakisa was nearly brought to a halt on Monday afternoon by community stakeholders who noted the absence of representatives from the South African Police Services (SAPS) and the Department of Justice and Correctional Services (whose Portfolio Committee is currently under fire for the state of the Cannabis for Private Purposes Bill). This was soon rectified with the arrival of two brigadiers and two representatives from the Justice Department. Brigadier van Graan, the Section Head for National Crime Operations, has admitted and agreed that members of SAPS are not adhering to the directive issued in 2019 in the wake of the Privacy Judgment and that Cannabis-related arrests are getting out of hand. Fields of Green for ALL’s Stop the Cops campaign have been documenting cases of unlawful arrests of members of the Cannabis community for years and have been calling for a moratium on arrests. The community may harbour some hope following the news that a new directive to SAPS members will be issued imminently – the deadline set for next week, Friday, 30 June 2023. Although Cannabis-related arrests are not halted entirely, it seems reinforcement of the 2019 directive will take place, with serious liability implications for officers treating potential suspects in an unconstitutional manner. We wait for the directive to understand the finer details of this order.
2. “Hemp” now regulated by end-use
As so many members of civil society noted in the latest Public Participation session for the Cannabis for Private Purposes Bill, there is actually no scientific basis for the distinction between Cannabis and Hemp, with some participants referring to the standard terminology of “Industrial Cannabis” or “Cannabis for Industrial Purposes” being used in international treaties. The absence of scientific or legal backing for the implementation of THC limits in Hemp plants was also questioned.
The good news is that these pleas were heard and government plans on doing away with THC-threshold limitations entirely for what will henceforth be known as “Industrial Cannabis”. Essentially, this would enable an adult person who cultivates Cannabis for their private consumption, to utilise the stalks of their plants as building material or other industrial applications. More importantly, ancestral Cannabis farmers from Mpondoland may legally sell their landrace Cannabis stalks and biomass to the many producers that have been knocking on the region’s door for this purpose. Further investment strategies will also be opened for the industry, with the following action items prioritised:
- Scaling up support for the existing catalytic projects put in place by the Department of Science and Innovation (DSI) and the Council for Scientific and Industrial Research (CSIR) to support and enable private sector investment in product aggregation, processing, and manufacturing technology for end-user demand.
- Securing an optimal financing framework which enables private sector investment with some public sector financing support, targeted at Black farmers and SME entrants in the emerging market and where appropriate, assisting to de-risk private sector investment.
- Deploying a set of pragmatic interventions concerning investment promotion, export support and standards and conformity assessment.
- Working with all provinces to further the activities currently underway and ensure alignment across government.
3. Cannabis for Private Purposes Bill to be cut down to size
The Public Participation session of the Cannabis for Private Purposes Bill in May earlier this year, made it clear that the Bill is considered unconstitutional by civil society and that it will not go uncontested, if implemented. Much time during the Cannabis Phakisa was devoted to discussing the way forward for the ever-evolving Bill, its complete scrapping under serious consideration. However, it was decided that the Cannabis for Private Purposes Bill would be sent back to the drawing board to realign itself with the Constitutional Court’s order of 2018. Several elements will be removed, such as the Hemp and Traditional Use clauses with hopeful hints that the plant-counting nature of the Bill will be revisited and removed.
4. SAHPRA to no longer regulate the cultivation of Cannabis
Many industry experts have long argued that the South African Health Products Regulatory Authority (SAHPRA) should not be involved with the regulation of cultivation of Cannabis. SAHPRA is tasked with enforcement of the Medicines and Related Substances Act no 101 of 1965, and a quick search of the act will reveal not one single mention of the word “cultivation”. It has been argued that SAHPRA’s mandate should start with the regulation of Active Pharmaceutical Ingredients – in this case, extracted cannabinoids such as THC, CBD, CBG and the like. Surprisingly, the sentiment was echoed by SAHPRA in the Phakisa, with the body stating it would move the focus of its licensed facilities to manufacturing activities. By reviewing the schedules to the Medicines Act, the Cannabis Phakisa envisions the enabling of the cultivation of Cannabis for non-medicinal uses, including industrial purposes, meaning that the cultivation of Cannabis would be tasked to the Department of Agriculture, Land Reform and Rural Development and other relevant government departments.
5. Legislation to be amended
The removal of Cannabis from the Drugs and Drug Trafficking Act 140 of 1992 is a milestone moment dreamed about throughout the Cannabis community, as this has been recognised as one of the biggest legal hurdles impairing the development of the Cannabis economy. The Cannabis Phakisa has finally resolved to fast-track this process, leading to “a historic achievement through which the cultivation of non-medicinal cannabis will be legal under the terms and conditions of the Plant Improvement Act, which falls under DALRRD.”
It seems despite being plagued by many concerns, the Cannabis Phakisa Action Lab of June 2023 was a successful and important step toward effective redirecting of Cannabis legislation in South Africa. Stakeholders and government departments alike seem eager and willing to work together to ensure that this time the process of re-legalising Cannabis will be sensible, grounded in evidence, practical and inclusive. We eagerly and, finally, optimistically await the implementation of these important decisions, in the next few months.