Last week, DTIC media relations manager Bongani Lukhele informed us that public input on a cannabis commercialization policy would only be called for after Cabinet signs off on draft regulations in April next year.
In DTIC-World the ‘Grey Zone’ Doesn’t Seem to Exist
He emphasized that government’s commercial vision was to become a ‘leading producer’ of cannabis for export and industrial purposes. Nowhere in his article did he mention the domestic market or the concept of local retail. Nor was there any sense of urgency or allusion to interim regulations that may bring order to the chaotic multi-billion rand illegal cannabis retail sector that has exploded in recent years across the country. It’s as if, in the DTIC’s mind, the ‘Grey Zone’ is not a ‘crisis of illegality’ that needs urgent resolution, it simply doesn’t exist.
Lukhele’s report confirms that the DTIC’s cannabis commercialization policy is being ‘gradually’ drawn up behind closed doors with select stakeholders:
Recent legislation, including the Cannabis for Private Purposes Act signed in 2024, lays the groundwork for legal cultivation and private use. However, commercial trade still faces regulatory hurdles, which are gradually being addressed. The commercialisation of hemp and cannabis in South Africa is advancing, with the dtic already consulting national and provincial departments, as well as industry stakeholders through preliminary consultation geared development of a commercialisation policy.
This is not a promising start to the DTIC taking up leadership of the National Cannabis Master Plan (NCMP). The plan is now four years old and still unable to get off the ground. It’s the same old ‘command and control’ approach that’s central to ANC policy in which the party assumes it knows what is good for the people instead of taking into account their considerations or needs.
Cannabis Master Plan and Cannabis Act Don’t Speak to Each Other
The problem is the NCMP is inconsistent with the Cannabis for Private Purposes Act of 2024, which recognizes the constitutional right of adults to consume cannabis privately yet makes no mechanism for how citizens can affirm this right without breaking the law. The Act, which specifically prohibits any commercial transactions in cannabis, is not yet in force. It remains in limbo because it is constitutionally defective, practically unenforceable and will be open to legal challenge the moment it sees the light of day.
The Department of Social Development estimated in 2019 that 3,65% of South Africans consume cannabis, that’s around 2,37 million in a population of 65 million. The figure is probably higher. The needs of this sizeable sector has not been factored into the NCMP equation at all. Despite the inappropriate, and hastily rescinded ban on hemp foodstuffs, the Health Minister did successfully raise the issue of consumer safety in the light of the widespread availability of THC products on the market.
The DTIC has chosen to ignore this and focus on a cannabis model that favours big business and the well-connected elite. The DTIC also remains ambiguous on whether full adult use legalization is actually on the cards. Although Trade Minister Parks Tau has come out in support of legalizing ‘rec’, saying it’s a net social positive, the DTIC has not translated that into a clear policy.
Cannabis Commercialization Horse Has Already Bolted From the Stable
The irony in all of this is that the DTIC is secretly drawing up a commercial cannabis framework to be revealed at some later date, while commercialization has already happened – not because of government, but despite it. Whether the DTIC framework will have any bearing on reality when it’s open for public input in seven months’ time is questionable. In the meantime, the cannabis retail sector is flourishing like the wild west as a law unto itself, its rapid growth encouraging criminality and punishing legitimate business people trying to play by the rules.
The law currently states that retailing cannabis products is illegal and that the only legal way to purchase cannabis in South Africa is to be a SAHPRA registered medical cannabis patient. SAHPRA has warned that the system is being abused but is unable to track medical cannabis patients or properly monitor service providers or provide coherent certification.
Besides medical cannabis scams, there are scores of outlets operating under ‘Traditional Healers’ Licenses’ for which there is no provision in law. There are also hundreds of cannabis outlets presenting themselves as private clubs serving the interests of member consumers by signing up processors and growers as members of the ‘closed loop’ system whereby transactions are limited to signed-up adults.
Thousands of others aren’t bothering with any attempt at legitimacy as the authorities are either overwhelmed by the sheer prevalence of cannabis outlets or have given tacit approval given the regulatory vacuum that exists – or are being paid off to look the other way.
The net result is that there is only ad-hoc law enforcement of the ‘Grey Zone’ and that as a result South Africans are now openly spending millions of rand a month on cannabis products, undeterred that they are breaking the law with every purchase.
The Elephant in the Room
Government has only itself to blame for the confusion as seven long years have elapsed since the Constitutional Court ruled that the private consumption of cannabis was legal and ordered the legislature to come up with appropriate enacting laws. The reality is that the NCMP and the Cannabis for Private Purposes Act have deliberately been crafted to make it as difficult as possible for citizens to enjoy their constitutional rights.
As one US commentator observed – South African cannabis reform is like a new chocolate factory that’s been built but is restricted to giving out samples for marketing purposes instead of being allowed to participate in the chocolate market as a player.
The Department of Trade, Industry and Competition has been appointed by President Cyril Ramaphosa to drive the creation of a legitimate cannabis economy. This is already doomed to failure because the DTIC, despite all the hype about hemp and medical cannabis exports, has singularly failed to acknowledge the proverbial elephant in the room.
Unlike Loxodanto africanus, the African elephant that graces the African savanna, consuming up to 250 kg of grass a day, this beast is much hungrier and potentially much more dangerous.
The longer the DTIC fails to acknowledge that the creation of a regulated domestic cannabis retail market should be the first step in sensible cannabis reform, the less control it will have in the future.
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