Where There’s Smoke – It’s Probably Cannabis

On 18 September 2018 the Constitutional Court unanimously confirmed the Cape High Court judgment from 17 March 2017, effectively legalizing the use of cannabis by South African adults by declaring section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 and section 22A(9)(a)(i) of the Medicines and Related Substances Control Act 101 of 1965 constitutionally invalid.

However, the Court suspended such declaration of invalidity for a period of 24 months from the date of the judgment in order to allow Parliament time to rectify the “constitutional defects”[1].

Essentially the Constitutional Court confirmed the right of South African adults to cultivate, possess and use cannabis “in private”, thereby deviating slightly from the Cape High Court judgement which limited such use to a person’s private dwelling. The change of the wording by the Constitutional Court therefore implies that a person may use cannabis in places other than his/her home, as long as it is not in public.

Questions then arise as to what constitutes “in private”? Inevitably, use of cannabis in the workplace becomes a talking point. But before considering that point it is important to consider/remind oneself of the nature of cannabis and its effect on users.

Although the effects of cannabis can vary considerably depending on (among other things) the form of cannabis used, the method of administration as well as frequency and duration of use, cannabis is regarded as psychoactive, meaning that it affects one’s mind, and effects may include one or more of the following: pain relief; relaxation; stress relief; confusion; loss of concentration; impaired motor skills and increased appetite.

Therefore, despite the legalization of cannabis use “in private”, it is still an intoxicating substance and therefore such use needs to be regulated.

As such, employment contracts and disciplinary codes which provide for (legal) drug/alcohol-testing of employees and stipulate a ‘zero-tolerance’ policy regarding drugs or intoxicating substances are still valid and binding. For many occupations, especially those involving heavy machinery, such policies are legally compulsory.

Employees should be aware that cannabis can remain detectable in one’s bloodstream for 3 to 5 days after occasional use, up to 15 days for heavy users and up to 30 days for chronic users as THC (tetrahydrocannabinol – the compound in cannabis that gets one ‘high’) gradually builds up in the body the longer/more frequently a person uses cannabis.

Earlier this month, 3 United National Transport Union (UNTU) members were dismissed after testing positive for cannabis in a test conducted by their employer during working hours. The employees took the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA) where they admitted that they had used cannabis but argued that it had been over the weekend and in private, as is now allowed by law.

The CCMA ruled that the dismissals were fair because the employer had a ‘zero-tolerance’ policy regarding substance abuse which the employees were aware of and had accepted as a condition of their employment.

Steve Harris, General Secretary of UNTU, was quoted as saying “Yes, you can smoke cannabis at home or use it for medical purposes, but if the employer wants to test you at any stage, and you test positive, you can be dismissed.”

Therefore, despite the change in the law, employees still need to adhere to employers’ workplace rules and policies, otherwise there is a ‘high’ risk of them being dismissed.

[1] 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, para 12 of the order.
Ashton Pollard – Attorney

Kim Rademeyer – Partner