The Republic of South Africa (“South Africa”) is, as of the 18th of September 2018, one of 34 (thirty-four) countries worldwide, that has lifted the ban on cannabis. In the ground-breaking consolidated matter of Minister of Justice and Constitutional Development and Others v Prince; National Director of Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others v Acton and Others [2018] ZACC 30 (“Judgement”) the Constitutional Court of the Republic of South Africa (“Constitutional Court”) upheld the ruling of the Western Cape High Court (“High Court”) and found that the criminalisation of the use, possession and cultivation of marijuana is not in line with the Constitution of the Republic of South Africa (“Constitution”) and therefore invalid.

For individuals who make recreational use of dagga, as well as certain religious groups who practice their religion making use of dagga, the Judgement is a victory.

In summary the effect of the Judgement is the following:

  1. adults (18 years and older) are allowed;
  2. to cultivate, possess and/or use cannabis;
  3. in private; and
  4. for personal use only.

(own emphasis).

The Constitutional Court notably broadened the scope of the High Court’s ruling by removing the words “home” and/or “private dwelling” and replacing them with “in private” (item 3 above). But what does this practically mean for South Africa? The Constitutional Court uses an example, whereby an adult person has cannabis in their pocket for personal consumption, takes a step outside their dwelling whilst the cannabis remains in their pocket – this would still fall within the scope of the Judgement. It remains to be seen how the South African courts will interpret “in private”. This is one of the many uncertainties that the judiciary, legislature, law enforcement and public face in the wake of the Judgement. The wording needs to be interpreted and determined by our judiciary, so that South Africa may have certainty as to their rights to use, possess and cultivate cannabis.

Another uncertainty faced by South Africans post the Judgement is, under what circumstances the personal consumption (item 4 above) exception will apply. Police officials will (at this stage) have to determine personal consumption on an ad hoc basis, based on factors such as quantity in the adult’s possession.

The legislature has 24 months to bring legislation in line with the Judgement. The Drugs and Drug Trafficking Act 140 of 1992 read with the Medicines and Related Substance Control Act 101 of 1965 (collectively referred to as the “Acts”) prohibits and criminalises the use, possession, purchase and cultivation of cannabis by any individual in the South Africa. These Acts will need to be amended in order to be brought in line with the Judgement.

Now that we have considered the effect and wording of the Judgement in the normal course, what will the impact be in the context of employment including discipline, incapacity, occupational health and safety and the workplace in general?

As explained in the example given by the Constitutional Court, you are within your Constitutional right to possess cannabis, for example in your pocket, outside of your home and/or private dwelling. So, what if an employee comes to work with cannabis in their possession? Currently, General Safety Regulation 2A (“Regulation”) is not in line with the Judgement, for ease of reference the Regulation is inserted hereunder:

“(1) Subject to the provisions of sub-regulation (3), an employer or a user, as the case may be, shall not permit any person who is or who appears to be under the influence of intoxicating liquor or drugs, to enter or remain at a workplace.

(2) Subject to the provisions of sub-regulation (3), no person at a workplace shall be under the influence of or have in his or her possession or partake of or offer any other person intoxicating liquor or drugs.

(3) An employer or a user, as the case may be, shall, in the case where a person is taking medicines, only allow such person to perform duties at the workplace if the side effects of such medicine do not constitute a threat to the health or safety of the person concerned or other persons at such workplace.”

(own emphasis).

The issues with the Regulation as it currently stands is two-fold. Firstly, someone may by way of a urine sample “appear to be under the influence”, as the most common, efficient drug tests, detect cannabis in your system quite some time after the user has smoked or ingested the drug – even though one is no longer under the influence. This poses a problem to an employee who is tested and fails the drug test even though he/she may not be under the influence of cannabis. According to the Regulation and internal policies, this could practically mean that an employee faces disciplinary action, even though he/she was within their rights when using cannabis in private and for personal consumption some 3 nights prior, for example. Secondly, as per sub-regulation (b) an employee may not possess cannabis, which is in direct conflict with the judgement. These regulations, much like national legislation, will need to be amended in order to comply with the Judgement.

Many workplaces are on “private” property and therefore could be construed to fall within the ambit of the Judgement, however, it may be difficult to argue that the workplace is private enough for use, possession and cultivation of cannabis. The fact that a workplace usually has numerous other employees, would likely mean that the workplace is not private and therefore the exception does not apply. One must bear in mind that the using of cannabis in the presence of minors and non-consenting adults is still prohibited.

It is important that employers regulate the amendments on cannabis within their disciplinary code. To avoid any uncertainty created by the Judgement, codes of conduct should expressly not permit the use of cannabis in the workplace and these restrictions should have relevant, distinct disciplinary codes and procedures in place for such breach. It should be expressly stated that the rationale behind the restriction lies in the fact that the workplace for all intents and purposes is considered public and that there are non-consenting adults in the vicinity. It is important that employers amend their policies on cannabis in order to adequately deal with the effect of the Judgment especially as a means to eliminate any uncertainty.

Until such time that there is certainty on the application of the Judgement, employees and employers alike should be cognisant of the exact wording of internal policies and procedures around drugs, as the blanket prohibitions on legal and illegal substance abuse no longer adequately apply to cannabis.

02 October 2018