This report was first published on News 24 on 26 January 2023

While the SA National Defence Force (SANDF) is concerned the Cannabis for Private Purposes Bill would allow its members to use cannabis in private, the Department of Justice and Constitutional Development responded restricting SANDF members from using it privately would be unconstitutional.

This does not mean soldiers can light up a spliff while on active duty.

On Thursday, 25 January 2023, the department responded to public submissions the Select Committee on Security and Justice received on the bill.

The bill would give effect to a Constitutional Court judgment that declared unconstitutional some parts of the Drugs and Drug Trafficking Act of 1992.

On 18 September 2018, the apex court upheld a ruling of the Western Cape High Court that it is legal to be in possession of dagga in your private capacity - the so-called Prince judgment.

The bill was only introduced to Parliament in September 2020.

The National Assembly passed the bill in November last year, and it is now before the National Council of Provinces.

The select committee's chairperson, ANC MP from Gauteng Shahidabibi Shaikh, said the committee "received an overwhelming response to the bill" - it received 46 submissions.

Deputy Justice Minister John Jeffery said: "It is not a bill providing for regulation. And that would be coming from another ministry. However, this bill attempts to go as wide as possible."

It appeared that much of the criticism of the bill in the submissions received was that it does not allow cannabis cultivation.

Jeffery said the bill did allow cannabis cultivation - the justice minister would determine the number of plants that could be cultivated.

From the department's presentation on the submissions received, another common criticism was the bill does not provide for the trade in cannabis and economic activities.

The department's response is this will be dealt with in subsequent legislation.

However, not everyone is in high spirits about the prospect of people being allowed to smoke weed in private.

This includes the SANDF.

"It is submitted that there are far more serious risks, owing to far more onerous duties placed on members of the SANDF, to allow members to use cannabis even privately, while in the service of SANDF and especially while on active duty," read the department's summary of the SANDF's submission presented to the committee.

The department responded to this as follows: "The bill will be unconstitutional if it were to prohibit members of the SANDF from using cannabis in their private places.

"The bill operates equally to all in the country, including members of the SANDF, even if they still are on active duty. However, the bill does not permit members to use cannabis whilst on duty."

The SANDF is also concerned about the "risks associated with members being under the influence of intoxicating drugs, such as cannabis [which] may result in injury or death to not only members, but to the greater public".

To this submission, the department responded: "Noted."

Wilma Nel submitted cannabis "already enslaves so many users".

"Making it legal and available to everyone will potentially risk enslaving more people, with the risk of increased criminal activities."

The department responded it was not clear how cannabis "enslaves people".

"To an extent that it is meant that it is harmful or addictive, it is submitted that there are institutions available to help people in this regard.

"To make it legal is to comply with the Prince judgment which gives effect to the right to privacy. It is also not clarified how the bill will increase criminal activities," read the department's response.

Dee Pringle submitted:

This should NOT be allowed at all - it has already brought our whole country down to rubbish - we are a drug, gang run state. Cannabis is a gateway to drug abuse - what do you think you are doing to the youth of this country?

The department responded the bill was "not the cause of drug use, as cannabis and other drugs have already been used before".

"The bill merely legalises cannabis use to give effect to the adult's right to privacy. The bill does not, however, give children the right to use or possess cannabis."

It was not only Pringle who was concerned about the bill's implications for the youth.

The organisation Doctors for Life submitted there was ample medical and scientific proof that cannabis "causes permanent irreversible harm to children" and "children need to grow up in a safe environment and be guided by adults to ensure the physical, mental and emotional health".

"The submission is noted," the department responded.

The Concerned Young People of South Africa submitted it had "observed first-hand that the decriminalisation of cannabis for private use by the Constitutional Court has already created a misconception in the minds of South African learners that dagga is a safe substance that is in fact now legal and may be freely used by adolescents".

The department responded as follows: "The Constitutional Court in the Prince judgment legalised the use, possession and cultivation of cannabis in respect of adults only and the bill aims to give effect to this.

"In the Centre for Child Law judgment the Constitutional Court decriminalised [as opposed to legalising] cannabis in respect to children.

"Even though it is well known that some children do use cannabis, the court did not give them the right to do so, and the bill also does not give them such right."

Cosatu noted the bill appeared in many instances to reflect a level of contradiction between departments in the government.

"It seeks to legalise the use of cannabis, yet it places significant restrictions in that regard."

The department responded although the bill aimed to legalise cannabis, there must be some conduct that could not be permitted.

"For instance, smoking in public, or in the presence of children or non-consenting adults, is conduct that must surely be restricted."

The committee will consider the submissions and the department's responses at a future meeting.

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