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Yes, the Cannabis for Private Purposes Bill (the Bill) was passed by the National Assembly – the national house of Parliament (the NA) – on 14 November 2023. No, this does not mean that the Bill has been enacted into law as an Act of Parliament. The Bill is still a bill, draft or proposed legislation, and is now being considered by the National Council of Provinces, the provincial house of Parliament (the NCOP).   

Remember, Parliament is the national legislature – it makes national laws and comprises both the NA and the NCOP. The NCOP’s primary function is to ensure that provincial interests are considered in the national sphere of government. By contrast, the provincial legislatures or law-making bodies situated within each of our nine provinces make laws specific to and applicable within each province.  

The Bill was initially tagged by a Committee of Parliament called the Joint Tagging Mechanism (the JTM) as a section 75 bill, ‘an ordinary bill not affecting provinces’. Essentially, this means that the JTM did not think that the Cannabis for Private Purposes Bill concerns a matter in respect of which the Constitution of our beautiful Republic (the Constitution) requires more extensive deliberation processes within and input from the NCOP. Otherwise, the JTM would have tagged it as a section 76 bill, ‘an ordinary bill affecting provinces’. Sections 75 and 76 refer to the sections of the Constitution that concern the processes for the passage of ordinary bills in Parliament.  

In terms of section 75, a bill is introduced, and then discussed and debated (with input from the public) in the NA. In the case of the Cannabis for Private Purposes Bill, the Portfolio Committee for Justice and Correctional Services spearheaded the discussions, public hearings and amendments made after each round of hearings. The NA then debates and votes on the bill in a plenary session. If a majority of the members present in the NA votes in favour of a bill, then that bill has been passed by the NA, and is then tabled in the NCOP for discussion and debate.  

And this is precisely where the Bill is at right now. The NA debated and passed the Bill in a plenary session on Tuesday, 14 November 2023, viewable in the video below:

The NCOP’s Standing Committee on Security and Justice leads the deliberation processes on the Bill, with input from and a process of public participation with the public. At the culmination of this process, the individual members of the NCOP will vote on the Bill. The NCOP may pass the Bill unamended, reject the Bill or pass it with proposed amendments, and return it to the NA. The NA will then be free to either reconsider the Bill or pass the Bill with or without incorporating the NCOP’s proposed amendments.  

If the NA passes the Cannabis for Private Purposes Bill at that stage, it will be submitted to the President. The President would then be required to either assent to and sign the bill, enacting it into law as the Cannabis for Private Purposes Act, or refer it back to the NA for reconsideration (and potential referral to the Constitutional Court for a decision on its constitutionality). Once enacted as an Act of Parliament, it would come into operation on a date fixed by the President by way of a proclamation in the Government Gazette. 

Therefore, the NCOP’s role in the Bill (as a section 75 bill that does not affect the provinces) is limited. The NCOP can delay the passage of the Cannabis for Private Purposes Bill, but it cannot prevent it from being passed.  

The OG Dagga Lawyer, Ras Gareth Prince, who soldiered the Constitutional Court’s landmark 2018 Privacy Judgment that essentially ordered Parliament to give effect to the Cannabis private-use rights in the first place, believes that: 

• the JTM incorrectly tagged the Bill as a section 75 bill; 
• it is a bill that should have been referred to the National House of Traditional Leaders;  
• the NA failed to meet its constitutional obligations of providing a reasonable opportunity to the public to make representations on the substance of the Bill; and 
• therefore, if enacted into law, the Bill should face a constitutional legal challenge by civil society on the basis of these procedural issues and/or that the actual substance and content of the Bill unjustifiably violates or limits human rights. 

We understand that the NCOP will be inviting written comments from the public on the Bill via the official websites of Parliament and the Parliamentary Monitoring Group, and in major newspapers in the coming weeks. Check out the B version of the Cannabis for Private Purposes Bill (i.e. version B19B-2020), that was passed in the NA and is under consideration in the NCOP.

Let us know your thoughts on the Bill in the comments or by reaching out directly and look out for the NCOP’s invitations to have your say.  It might be our last chance!