The original drafters of the Cannabis Bill, made it clear from the start that they were taking a narrow view of the Constitutional Court judgement legalizing cannabis and intended to restrict access to the plant as much as possible. They argued that ConCourt had made no ruling on commercialization and were therefore not obliged to take this into consideration.
The drawn-out discussions over the Cannabis Bill happened at the same time as the National Cannabis Master Plan was being developed as government policy, but the two may have been existing in parallel universes with no connection.
The contradiction between the Cannabis Bill and the Master Plan was there from the start
Despite well over 150 public submissions to Parliament pointing this out, as well as many of the Bill’s constitutional and practical flaws, the state’s lawyers bamboozled Parliament into drafting a law that must rank as one of the worst pieces of legislation passed in the post-apartheid era.
On pure technical terms, the Act is nonsensical. It allows the private possession and consumption of cannabis as per the ConCourt ruling, and the right to grow the plant, but makes it illegal to buy or sell cannabis flower or seeds. In other words, the Act recognizes a constitutional right but disallows citizens from exercising that constitutional right.
The Act also stands out as an obstacle to government’s own economic policies.
The National Cannabis Master Plan, drawn up initially by the Department of Agriculture and now led by the DTIC, is intended to create a cannabis economy, with particular emphasis on rural development. It is being built on the assumption that cannabis is an agricultural commodity that can be traded. The Justice Department is meant to create the legislation to enact that.
Instead, what we have is the most bizarre situation. The state is trying to gazette a law that specifically criminalizes the trade in cannabis at the same time drafting a law that encourages regulated dealing. This has led to a paralysis of policy and government finds itself in a mess of its own making.
There are two explanations for this, neither of which sits comfortably. Either there is a level of constitutional incompetence at the heart of South African law-making, or there is a deliberate attempt by individuals within power to either block or slow down the legalization of cannabis for whatever ulterior motive. The third explanation is that it is a combination of both: constitutionally illiterate state lawyers being manipulated by their political bosses who in turn are working with the drug cartels that have infiltrated the highest levels of the security cluster.
The story behind the Cannabis Act
An insider who was close to the drafting of the Cannabis Act does believe the Justice department is resistant to reform but cautions against extremist conspiracy thinking.
Speaking on condition of anonymity, he says the Cannabis Act was a contested zone from Day One. He says that state lawyers drafting the bill between 2021 and 2023 were arch-prohibitionists and under no instruction to accommodate the National Cannabis Master Plan, which in itself had not yet tackled the issue of commercialization.
“It became quite clear during the process that the Bill was defective and that it would be at odds with the National Master Plan. The state law advisors were very clear in that their intention was to restrict cannabis as much as possible. However, they were strong-armed, probably by the President’s advisors, to include in the bill a section that envisaged a future law allowing commercialization.
“Then the focus came down to one thing – getting the Act out as fast as possible because of one key clause which would remove cannabis from the Drugs and Drug Trafficking Act. This was identified as the key blockage to bridging the Cannabis Act with a future over-arching cannabis legislation.”
“So it became a bit of a race against time. The sixth administration was coming to an end, and the Justice and Correctional Services Portfolio Committee rushed the law through Parliament in order to get it into law before the May 2024 elections. The alternative would have been that government would yet again be in breach of ConCourt’s deadlines as the new administration would have to start the whole process again from scratch.”
“Remember, the President did a big sell on cannabis in his 2022 SONA. It got everybody excited, from the commercial sector to the traditional growers. Expectations were raised but there was no alignment or even agreement within government as to what the National Cannabis Master Plan should look like. So basically, nothing happened after SONA until there was a high level discussion between the Private Sector Working Group led by Ayanda Bam with the Presidency’s office which focused on the urgency of getting cannabis removed from the Drugs Act. That would mean it was no longer defined as a narcotic and therefore would open up the way for investment and placate the guys in Mpondoland who were all rumbling about being left out of the process”.
The Cannabis Act’s main purpose became to get cannabis out of the Drugs Act
My source says the virtual meeting with the Presidency in 2022 injected a new momentum into reform, which saw oversight of cannabis reform tucked under the wing of Operation Vulindlela. This is essentially a JV between Treasury and the Presidency to identify structural blockages to economic reform and to develop policy to overcome these obstacles. Its focus to date has been mostly on the energy and logistics sectors. The Phakisa Action Lab of 2023, hosted by the Presidency was also a result of this momentum when over 100 private sector stakeholders met senior government officials and charted a rough road towards commercialization.
“It was all looking quite rosy back then, but I think the May 2024 elections took everybody’s eye off the ball” says my source. “Cannabis policy, like many other things became a side-show. The ANC was starting to panic about the polls. In the Eastern Cape there was a lot of ANC electioneering around legalizing cannabis for the benefit of rural growers, and that cannabis would be removed from the Drugs Act.”
“I understand that senior advisors urged the President to sign off on the Cannabis Act ahead of the elections mainly to get cannabis out of the Drugs Act and to quell disquiet in the Eastern Cape. It was literally a last-minute thing and the President signed the Act the day before the elections. You see, the Cannabis Act was crafted in such a way that it would automatically amend the Drugs Act and this was the quick fix everyone was looking for”.
The President put pen to paper and signed the Act into law on 28 May 2024 on his last day in office before the elections. The Act was essentially a ‘hospital pass’ from the outgoing ANC sixth administration to the Government of National Unity of unfinished cannabis business.
The GNU has been purposeful in reigniting the National Cannabis Master Plan which envisages a regulated adult-use environment which will make the Cannabis Act obsolete. Nonetheless, the Cannabis Act needs to be enacted to set off the chain of reaction envisaged by the Plan. It remains hamstrung as the Act is still the only legal mechanism in the room to get cannabis out of the Drugs Act. The legal basis on which cannabis reform and economic development is founded, remains shaky – and still under the control of the Justice Department.
My source sighs. “Now here it all goes back to the Justice Department and it all slows down again. It took them two years to publish draft regulations for the Act that are nonsensical. I mean the home grow limit of five plants is laughable. I remember back in 2022 when the Portfolio Committee was being briefed on the situation in Mpondoland and one of the MP’s asked one of the chiefs as to what he thought the limit for growing one’s own plants should be. The chief paused for a moment and said ‘I’d have to think about it, but I’d say at least 3 000.”
He says that despite all the hearings, the traditional growers have been completely ignored by the Cannabis Act – and there was nothing pertaining to their situation in the draft regulations that were put out for public comment in February this year. “Fact is” he says, “there can be no law on cannabis in South Africa without a solution for the thousands and thousands of Mpondoland legacy farmers.”
The Prince court application to halt cannabis arrests could hold up the Cannabis Act from becoming law
The Justice Department has given no indication as to when it will publish the final regulations in order for the Cannabis Act to become law, but the matter has now been overtaken by a new development – the urgent application by Gareth Prince to halt cannabis arrests.
In his application to the Western Cape High Court, the legal activist and Rastafarian elder has challenged the constitutionality of a number of government decisions regarding cannabis.
How his challenge unfolds in court – the matter surfaces again on 8 June 2026 – is likely to affect the fortunes of the Cannabis Act, but safe to say it is not going to become law any time soon.
My source says he believes the Cannabis Act is too embroiled in legal controversy to become law without a far-reaching revision.
“My feeling is then, why bother revising a law that’s essentially defective. New laws that will govern commercial trade are being drawn up and are designed largely to replace the Cannabis Act, anyway. You could say the rush job on getting it passed so that the Drugs Act would be removed from the scene has backfired. They should have just amended the Drugs Act directly without going through the farce and the fuss of doing it via the Cannabis Act.”
“Today we are no closer to seeing any cannabis legislation becoming law than was the case when the President signed the Private Cannabis Act into law on 28 May 2024” he says. “I’m willing to take a bet that we’ll be sitting down again next year this time, wondering when the Cannabis Act of 2024 is going to see the light of day”.
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