Submission to Parliament: Comments on Cannabis for Private Purposes Bill [B19 – 2020] –A violation of the principle of the best interests of the child.

October 16, 2023

The Portfolio Committee on Justice and Correctional Services

RE: Comments on Cannabis for Private Purposes Bill [B19 – 2020] –A violation of the principle of the best interests of the child.

We refer to the invitation for further written submissions on the Portfolio Committee on Justice and Correctional Service’s proposed Cannabis for Private Purposes Bill hereinafter (“the Bill”).

Umphakathi Okhathazekile (CYPSA) is a national non-profit and public benefit organisation, focused primarily on youth upliftment and work amongst grassroots communities nationally. We have to date motivated over one million learners nationwide via our awareness campaigns, in addition to many other activities conducted on a national scale.

As an organisation representing South African youth and grassroots communities in all nine provinces, we continue to have grave reservations about the Bill itself, as well as specific provisions of the Bill, despite further amendments having been made to the Bill. We remain apprehensive about the likely effects that the adoption of this Bill will have on South Africa’s youth, our education system and our society.

The competing rights of our children should be recognized and given their due weight when balanced against the so-called right of an adult to consume cannabis in a private space. For example, the child’s right to freedom of choice and the right to personal security, the right to a basic education and a safe environment, and the overarching principle of the best interests of the child, cannot be sacrificed in order that adults may legally consume or smoke drugs. The Bill will not only have serious social implications, but also serious legal implications. The Bill should, but does not, adequately consider children’s rights and best interests and should not be passed in its current form.

The proposed Cannabis for Private Purposes Bill in its current form raises significant concerns regarding its potential to violate the “best interests of the child” principle enshrined in South African law, should it be adopted. This principle is a fundamental tenet of the Children’s Act,[1] and is based on the United Nations Convention on the Rights of the Child, which South Africa has ratified. The Bill, in its current form, raises numerous issues related to the best interests of the child, with just a few examples of conflicts with this principle which would be caused by the adoption of the Bill being listed below:

Exposure to Second-hand Smoke: The Bill allows for the private use of cannabis in homes where children live, potentially subjecting children to the inhalation of second-hand smoke, which can have detrimental effects on their health and well-being. Yet, section 5(3) of the Bill makes it a class C offense to smoke cannabis in the presence of a child in a private place, in an attempt to address a potential violation of the safety and rights of the child which are being threatened because of and by the provisions of this Bill.

Impaired Parental Judgment: Cannabis use can impair parental judgment and coordination, potentially putting children at risk of accidents, neglect, or harm.

Increased Risk of Substance Abuse: Easier access to cannabis will increase the risk of children experimenting with the drug, leading to potential long-term substance abuse issues.

Unsafe Storage and Accessibility: The Bill does not adequately consider nor does it provide stringent enough guidelines for the safe storage of cannabis and cannabis derived products in households, making cannabis more accessible to curious children, increasing the risk of accidental consumption.

Role Modelling: Parents are considered role models for their children. The Bill’s leniency toward cannabis use by parents will send a message to our youth that drug use is socially acceptable, and even desirable, further undermining efforts to promote drug-free environments and a drug free generation.

Inconsistent Messaging: The government’s efforts to combat drug abuse amongst children, is undermined when government simultaneously considers the legalization of a drug that is harmful to children’s physical and mental health and is shown to lead to the use of “hard drugs” such as heroin and cocaine. Changes to legislation surrounding cannabis has already sent out the message to South Africa’s youth that cannabis is now legal. Government officials should visit school districts in order to gain an authentic picture of what is currently happening on the ground, where in some schools one out of every ten learners are addicted to cannabis, many of whom are already on a “high” early in the morning before school even starts for the day.

Child Custody and Parental Rights: Cannabis use can complicate child custody disputes, especially when the best interests of the child are considered, as it raises questions about one or both parent’s ability to provide a safe and stable environment. CYPSA recently visited schools in Pretoria, during which visits several learners shared stories of abuse at the hands of parents and family members who are “high” after smoking cannabis.

Psychosocial Effects: The Bill does not adequately address the psychosocial impact on children living in households where cannabis is being used regularly, potentially leading to emotional and behavioural issues.

Educational Implications: The increased normalization of cannabis use will negatively affect children’s performance at school and compromise their future prospects.

Legal and Regulatory Gaps: The Bill is inadequate in providing for and ensuring control over private cannabis use and ensuring that the best interests of the child are safeguarded.

Section 4(3)(a) of the Bill makes it a class C offense to fail to store cannabis in a secure space inaccessible to a child. However, in the United States, where cannabis has been decriminalize or legalized in many states, the number of young children unintentionally exposed to edible cannabis products jumped by 1375% over a 5-year period and the legalization and decriminalization of cannabis has been causally linked to a poisoning incidents involving children. This trend will certainly evidence itself in South Africa should the Bill be adopted, as it opens the way for more cannabis to be present in more homes, thereby exposing more children to cannabis and cannabis derived products, such as edibles.

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Cannabis related poisoning incidents are not new to South Africa, with recent high profile incidents of South African learners having been poisoned by cannabis edibles having made international news headlines. The most recent of which involved approximately 90 learners who fell ill after consuming cannabis laced muffins, many of whom had to be hospitalized. This event took place prior to the passing of the Bill, which will certainly lead to a surge in such incidents involving children should it be adopted.

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The provisions relating to offences involving children contained in the Bill are woefully inadequate. Guardians of children who permit their children to possess, deal in, and more especially consume or smoke cannabis, should face the severe repercussions of a class A offence, being imprisonment for a period of 15 years or a substantial fine.

We note that section 7 of the Bill makes no stipulation as to the value of fines that may be imposed for class A – D offences, and these provisions are deficient as a result. Amounts should be stipulated which adequately equate to the seriousness of the offense committed, to avoid a situation where small fines are imposed on those found guilty of cannabis related offenses, as opposed to imposing the lengthy jail terms prescribed by some classes of offenses, thereby reducing the criminal sanctions envisioned to a mere slap on the wrist.

Section 6(1)(b) of the Bill which provides for an exception allowing children to be engaged in the cultivation of cannabis for the consumption and private use of their guardians and under the supervision of their guardians should be severed, as such an activity amounts to child abuse.

It is unclear how the activities described in section 6(1)(b) of the Bill differ in any way from the activities in section 6(2)-(5), which are class A offences for which severe criminal sanctions are prescribed, other than on the basis that the children are engaged by and supervised by their guardians. We hold that this is unsupportable and badly written legislation and that no provision for engaging any minor in any of the section 6 activities described should be condoned under any circumstances whatsoever.

It is admirable that some effort has been made to protect the interests and safety of children by the latest amendments to the Bill such as section 3(2)(a) which requires adult persons to ensure cannabis plants are inaccessible to children or be guilty of a class C offense, it is unclear how such a measure will be policed and enforced and it is unrealistic to believe that this clause will be of any effect practically in ensuring the rights and safety of children living with parents who use and abuse cannabis.

In addition, we note what seems to be a very definite conflict between section 3(2)(a) which falls under the heading of “Cultivation offenses” and the exemption provided for in section 6(1)(b) which seems to render section 3(2)(a) null and of no force and effect whatsoever as guardians are permitted to expose the minors in their care to cannabis under this exemption.

If one considers the above and other offenses provided for in the Bill, it is unclear how these measures are likely to be achieved in a country with an already overburdened police force who exhibit a lack of control over and ability to police even socially acceptable substances, which are currently easily available those below the age of 18 despite supposedly being regulated and restricted for use by people over the age of 18.

CYPSA believes that the Traffic Police and Traffic Departments have not been adequately consulted during the preparation of this Bill. The smoking of cannabis in private will result in people who then leave their location and enter vehicles in order to travel. Accidents resulting from drivers under the influence of cannabis will result in the loss of lives, even the lives of innocent road users who do not use cannabis. CYPSA believes that the Traffic Police and Traffic Departments are not adequately equipped to deal with the increased burden of testing for and policing of cannabis road users that this Bill will place on them.

Cannabis consumption and its association with fatal road accidents has been the subject of numerous studies in the United States, where cannabis has been either legalized or decriminalized in several states, shedding light on the potential risks posed by driving under the influence of cannabis. A comprehensive review published in the journal “Epidemiologic Reviews” in 2017 examined 24 studies and determined a substantial link between cannabis use and an elevated risk of fatal traffic accidents.[2] The findings of this systematic review contribute to the growing body of evidence supporting the notion that cannabis consumption is a significant factor in road safety.

Supporting this evidence, a study featured in “JAMA Internal Medicine” in 2018 analysed data from over 2 million drivers involved in fatal car crashes and concluded that the presence of THC, the psychoactive component in cannabis, was correlated with an increased risk of fatal accidents.[3] This large-scale investigation emphasizes the need for understanding and addressing the implications of cannabis use on road safety.

Furthermore, a report from the National Highway Traffic Safety Administration (NHTSA) in the United States highlighted the impairing effects of cannabis on cognitive and motor skills necessary for safe driving, with a direct association between cannabis presence in a driver’s system and an elevated risk of accidents.[4] The NHTSA report serves as an authoritative reference underscoring the dangers associated with cannabis-impaired driving.

In tandem with these findings, a study published in the “American Journal of Public Health” in 2019 explored the prevalence of cannabis use among drivers involved in fatal accidents in the United States. The study’s results revealed an increasing trend in cannabis use over time, solidifying the link between cannabis consumption and its contribution to fatal road accidents.[5]

In conclusion, a convergence of evidence from systematic reviews, large-scale investigations, and authoritative reports underscores the definite link between cannabis consumption and an elevated risk of fatal road accidents. These findings necessitate a comprehensive approach involving education, regulation, and enforcement to address the growing concern of cannabis-impaired driving and ensure public safety. However, it remains to be established how driving under the influence of cannabis by cannabis users is to be avoided, policed and how the costs involved in testing for the presence of cannabis in the system of road users are to be funded, now that the Bill plans to open the flood gates of private cannabis use and resulting increased incidences of drivers under the influence of cannabis.

Whilst section 5(5) of the Bill makes it a Class C offense for an individual to smoke or consume cannabis whilst in a vehicle or on a public road, this provision does not address those who smoke or consume cannabis privately before entering and/or driving a motor vehicle on public roads, thereby jeopardizing the safety and lives of innocent road users and their families.

We further note that the definition of “cannabis plant” in the Bill excludes hemp which would exclude the hemp plant from any of the Cultivation offenses and Offenses involving children detailed in the Act.

However, Delta-8 tetrahydrocannabinol, also known as delta-8 THC, is a psychoactive substance found in the Cannabis sativa plant, of which cannabis and hemp are two varieties. Delta-8 THC is one of over 100 cannabinoids produced naturally by the cannabis plant but is not found in significant amounts in the cannabis plant. As a result, concentrated amounts of delta-8 THC are typically manufactured from hemp-derived cannabidiol (CBD).

Delta-8 THC has psychoactive and intoxicating effects, similar to delta-9 THC (i.e., the component responsible for the “high” people may experience from using cannabis). The United States Food and Drug Administration (FDA), is aware of media reports of delta-8 THC products getting consumers “high.” The FDA is also concerned that delta-8 THC products likely expose consumers to much higher levels of the substance than are naturally occurring in hemp cannabis raw extracts.

The United States Food and Drug Administration (FDA), received 104 reports of adverse events in patients who consumed delta-8 THC (hemp derived) products between December 1, 2020, and February 28, 2022. Of these 104 adverse event reports:

77% involved adults, 8% involved paediatric patients less than 18 years of age, and 15% did not report age.
55% required intervention (e.g., evaluation by emergency medical services) or hospital admission.
66% described adverse events after ingestion of delta-8 THC-containing food products (e.g., brownies, gummies).
Adverse events included, but were not limited to: hallucinations, vomiting, tremor, anxiety, dizziness, confusion, and loss of consciousness.[6]

National poison control centres in the United States received 2,362 exposure cases of delta-8 THC products between January 1, 2021 (i.e., date that delta-8 THC product code was added to database), and February 28, 2022. Of the 2,362 exposure cases:

58% involved adults, 41% involved paediatric patients less than 18 years of age, and 1% did not report age.
40% involved unintentional exposure to delta-8 THC and 82% of these unintentional exposures affected paediatric patients.
70% required health care facility evaluation, of which 8% resulted in admission to a critical care unit; 45% of patients requiring health care facility evaluation were paediatric patients.
One paediatric case was coded with a medical outcome of death.[7]

“Hemp” is not a purely industrial, safe and non-narcotic variant of the cannabis plant as the public and legislators have been led to believe, and should fall within the definition of “cannabis plant” in the Bill. The request by the Department of Agriculture, Land Reform and Rural Development to amend legislation to allow for the commercial production of hemp in South Africa should be a approached with a firm eye on the potential for abuse inherent in any such amendments.

Hemp should be subject to the same controls, regulations and offenses, more especially in relation to offenses involving children, in order to avoid the need for South Africa to legislate after the fact in order to close the loophole created by failing to make provision for psychoactive products manufactured and marketed from hemp derivatives, as law makers in the United States are now being forced to do.

The Bill provides for amendments to the National Road Traffic Act[8] to allow for exemptions in cases where “medical cannabis” was administered to “patients” by medical practitioners. This is an issue that is firmly rooted in the realm of science, and the safety and suitability of cannabis and its derivatives for medicinal use is something that can either be confirmed or disproved by scientific means alone.

There is as yet no clear definition of medical cannabis in the South African context, and we fear that the public are being misled as a result. There are groups in South Africa who claim to smoke cannabis for medical reasons, whereas to ingest cannabis by smoking the substance is harmful to the human body as confirmed by CANSA.[9]

A clear and concise definition of precisely what constitutes medicinal cannabis must be decided upon and presented openly to the public of South Africa for their consideration and comment, and science should dictate this definition.

All substances need to pass through extensive testing and strict screening processes before they can be registered with the Medicines Control Counsel and other medical bodies in South Africa. This process can take several years of intensive study. Side effects of any substance must be documented. Cannabis itself contains thousands of metabolites (chemicals produced when a substance is broken down by the body), all of these must be thoroughly tested and documented before cannabis products can be deemed safe and registered and released as medicine fit for public consumption.[10]

This process and the usual best practices should under no circumstances be ‘fast tracked’ or findings ignored due to public pressure and demand. Interference in these processes should not be tolerated and the fact remains that it has yet to be determined, scientifically, whether the health risks associated with the use of any cannabis based “medications” outweigh the benefits thereof.

It appears that many so-called cannabis based “medications” make the claim that they are effective for the treatment of pain in cancer patients specifically. However, they do not cure cancer as is often claimed in an effort to mislead the public and thereby profit from the sale of these products, and are only used as supplements to existing treatments for cancer symptoms. We fear that many may be supporting legislative amendments as they are under the false impression that cannabis derivatives will cure their cancer or that these new medications will be far superior to those already in existence. CANSA itself has stated that this is in fact not the case.[11]

We reiterate several concerns raised in our previous submission, which seemingly have not been given due consideration and which remain to be addressed or, for that matter, to form part of the discussion surrounding the Bill to date at all.

The increase in the availability of cannabis within our communities resulting from the implementation of this Bill, will mean that more cannabis will be used by school going children than ever before. To control and regulate cannabis in the manner suggested by the Bill is a practical impossibility, as has been seen even in first world and well-resourced countries such as the United States and European nations where cannabis has been legalized or decriminalized.

CYPSA believes that teachers and South African teachers unions have not been adequately consulted in the preparation of this Bill and that the provisions of the Bill will only serve to add to the already almost impossible situation that South African teachers face in our nation’s schools. One notes that the word “school” does not appear even once in the Bill.

Cannabis decriminalisation via this Bill will result in late coming, absenteeism and school dropout escalations due to the increase in the availability and consumption of cannabis in our communities. Due to their addiction to cannabis and likely subsequent progression to the use of other narcotics, many learners will drop out altogether. Parents legally using cannabis in the evenings may fail to get their children to school on time or at all.

While South African learners are required to use pit toilets during school hours, have no electricity or running water at their schools and no internet access for research and study purposes, and whilst many South African schools are in a state of disrepair, CYPSA believes that funding and resources could be better utilized on improving the school system and infrastructure in our country than trying to regulate a decriminalized recreational and commercial cannabis market.

The Bill defines smoking cannabis as being to “inhale or exhale smoke produced by ignited cannabis” or “vapour or aerosol of cannabis produced by a vaping device producing cannabis vapour or aerosol.” When one considers the Bill’s claim that in decriminalizing and commercializing cannabis theses various mitigating measure should be observed, one must simply think of a child living in a home where parents and siblings smoke or vape cannabis in their so-called “private” space. By the Bill’s own definitions, children will themselves be smoking cannabis when they inhale the fumes produced by their parents and siblings and no meaningful mitigation of the harms that will be caused by decriminalizing cannabis is possible. It is not realistic to think that every home can be monitored for child exposure to cannabis and cannabis products for example.

CYPSA is an organization that has conducted nation-wide drug and addiction awareness campaigns for the past 13 years. CYPSA fails to see how the Bill in its current form will achieve the prevention of access to recreational cannabis by persons under the age of 18, when currently South African youth are easily able to access alcohol and cigarettes, which are supposedly only for use by individuals over the age of 18 years. To the contrary, during our campaigns, it has become apparent to CYPSA that the message our youth have received is that cannabis use is now legal and CYPSA believes that the legalization of cannabis in South Africa via this Bill will only reinforce and encourage cannabis use by youth below the age of 18 years.

CYPSA objects to the use of this Bill as a vehicle for the first step in implementing a “harm reduction” approach to dealing with drugs and drug addiction in South Africa. We fear that this may be the first step in an attempt to legalize the use of all drugs, including so called “hard drugs” for recreational purposes in South Africa.

Harm reduction measures which have been implemented in first world countries are showing little signs of success and have largely resulted in increased drug use, criminal activity and death. Further, a European or American model for Harm Reduction cannot simply be imported into South Africa, a third world country with a unique demographic model. Unlike foreign nations, South Africa has a population pyramid that indicates a large cohort of young people and that we are a “young” nation, versus “older” nations who are more mature and more responsible decision makers.

With a global trend towards the decriminalizing of all drugs, even so-called “hard drugs” such as heroin and cocaine, CYPSA believes we as a nation should fight this trend towards decriminalization and protect the minds and wellbeing of South Africa’s youth and thereby our future as a nation. More especially considering the negative results of legalization and decriminalization emerging in those nations where drugs have been decriminalized for some years now.

The Bill claims to be aimed at freeing up resources by avoiding arrests and resources utilized by arresting and prosecuting cannabis users for what is now called a minor offence. However, having worked with over 20,000 drug users over the past ten years, CYPSA is all too well aware of the link between cannabis use and a progression to the use of harder drugs, more specifically heroin (whoonga / nyaope) amongst South African youth of school going age. The link between cannabis and heroin is especially strong within the South African context, where cannabis is used as a medium in which to smoke cheap powdered heroin.

An increased availability of cannabis will lead to an increased use of cannabis within our communities. Once young people progress from cannabis use to using heroin or crack cocaine, their drug use is accompanied by habitual criminality and violence. Increasing the availability of cannabis and removing penalties for the possession and use of cannabis, will ultimately fuel an increase in harder drug use and will place an increased demand on the SAPS and the criminal justice system of South Africa.

The effort to decriminalize cannabis for private use has simply resulted in a long list of new offences having been created in Section 3 – 6 of the Bill, which must now be policed and enforced, thereby burdening an already underequipped, underfunded and undermanned police force in the effort to try and legitimize the Bill and to give some consideration to protecting the rights and wellbeing of children which were placed at risk by the Bill itself in the first place.

Increased use of cannabis in our communities as a result of this Bill will lead to an increase in cases of mental illness. Not only will this place an increased burden on South Africa’s already failing healthcare system, but mentally ill people are also often responsible for violent or sexual offenses.

CYPSA believes that increased cannabis use in our communities will only serve to fuel the wave of Gender Based Violence (GBV) already sweeping through our country, especially as a result of increased drug use in the home which will fuel an increase in domestic violence cases.

CYPSA believes that South African parents have not been provided an adequate opportunity to comment on and participate in the drafting of this Bill, nor in the legal processes that gave birth to it. Elders and parents in grassroots and rural communities have no knowledge of, or means to access electronically, the processes through which this Bill is currently passing and are in many if not most cases unaware of the opportunity currently being provided for public comment on the Bill via electronic platforms.

More research is required, within the uniquely South African context, before a Bill such as this can be safely drafted and adopted, if it can be safely done so at all. For example, cannabis in South Africa is largely cultivated in rural areas. Rural learners are aware of and must pass by these crops of cannabis on their way to school. Cannabis decriminalization will serve to encourage larger scale cultivation of cannabis in these areas, thereby exposing more youth to a larger amount of more readily available cannabis. CYPSA is not aware or any formal or meaningful research having been done into the likely results of cannabis decriminalization in a South African context to date, and it is unclear whether this Bill and its provisions are based on or guided by any reliable sources of information whatsoever.

[1]. The Childrens Act 38 of 2005.

[2]. Asbridge, M., Hayden, J. A., & Cartwright, J. L. (2012). Acute cannabis consumption and motor vehicle collision risk: systematic review of observational studies and meta-analysis. BMJ (Clinical research ed.), 344, e536.

[3]. Li, M. C., Brady, J. E., DiMaggio, C. J., Lusardi, A. R., Tzong, K. Y., & Li, G. (2012). Marijuana use and motor vehicle crashes. Epidemiologic reviews, 34(1), 65–72.

[4]. National Highway Traffic Safety Administration (NHTSA). (2017). Marijuana-Impaired Driving: A Report to Congress.

[5]. Terry-McElrath, Y. M., & Patrick, M. E. (2019). Simultaneous alcohol and marijuana use among US high school seniors from 1976 to 2018: trends, reasons, and situations of use. American journal of public health, 109(6), 929–934.

[6]. FDA (2022) Available at: https://www.fda.gov/consumers/consumer-updates/5-things-know-about-delta-8-tetrahydrocannabinol-delta-8-thc (Accessed: 12 October 2023).

[7]. FDA (2022) Available at: https://www.fda.gov/consumers/consumer-updates/5-things-know-about-delta-8-tetrahydrocannabinol-delta-8-thc (Accessed: 12 October 2023).

[8]. National Road Traffic Act 93 of 1996.

[9]. Herbst M C et al (2021) Available at: https://cansa.org.za/files/2021/09/Fact-Sheet-and-Position-Statement-on-Cannabis-in-South-Africa-September-2021.pdf (Accessed: 12 October 2023).

[10]. Herbst M C et al (2021) Available at: https://cansa.org.za/files/2021/09/Fact-Sheet-and-Position-Statement-on-Cannabis-in-South-Africa-September-2021.pdf (Accessed: 12 October 2023).

[11]. Herbst M C et al (2021) Available at: https://cansa.org.za/files/2021/09/Fact-Sheet-and-Position-Statement-on-Cannabis-in-South-Africa-September-2021.pdf (Accessed: 12 October 2023).