Cannabis – Understanding the Constitutional Court ruling

By dessquire, 26 September, 2018

The constitutional court has recently – for all practical purposes, legalised the private use of cannabis. What the Constitutional Court confirmed is that citizens have the right to cultivate, possess and use cannabis in private.

In considering the rights of all in relation to “Private use” we need also refer to the ruling that also says that citizens may consume cannabis “In private” – not in one’s private property or own home but in a private place i.e. not in public. Consider this carefully. On the one hand the ruling refers to the privacy of one own home or property – for cultivation, possession and use, but on the other hand it refers to smoking or consumption of cannabis in any private place where public awareness is limited.

What many do not realize is that all of the above in terms of the judgment has been suspended for a period of “Two Years” so parliament has time to amend the necessary legislation that may have an impact on the judgment. Many as I have said have failed to take notice of this aspect of the judgment. In other word there is no change to the legislation and there will be no change until parliament approves the new legislation. So for employers and other affected parties nothing has changed as yet.

The two year “suspense period” however affords employers an opportunity to consider what impact the changes in legislation may have on workplace policies. Should employers consider amending their policies, practices and disciplinary codes?

Consider these facts:

  1. Cannabis is a psychotropic drug but it is less harmful than say heroin or cocaine.
  2. Many users claim the drug helps in relaxation and relief from stress and pain. It is said to increase appetite, reduce motor skills, cause confusion and/or loss of concentration and decrease motivation.
  3. The effects of consumption of cannabis takes about 30 minutes to kick in and can last up to 3 hours.
  4. Cannabis can be detected in the blood stream for 3 to 5 days after occasional consumption, up to 15 days for heavy usage and for to 30 days for chronic users.
  5. Unlike alcohol the level of impairment cannot be detected based on a simple test. Proof of impairment is currently not required as it can be assumed a person is under the influence of cannabis due to its intoxicating nature.

So in considering the way forward employers would have to consider other legislation such as the Mine Health and Safety Act of 1996 as well as the Occupational Health and Safety Act.

In addition employers would need to meet with and discuss the way forward with Union Reps as well as with all employee representatives.

  1. The Mine Health and Safety Act of 1996 makes it incumbent on employers to provide conditions for safe operation, and employees must take reasonable care to protect their own health and safety and that of other employees.
  2. The Act further states that no person that is in a state of intoxication may be allowed access to a mine.
  3. The Occupational Health and Safety Act states that an employer may not allow any person who is or who appears to be under the influence of an intoxicating substance, to be allowed access to the workplace. Neither may an employer allow any person to have intoxicating substances in his or her possession in the workplace.

We can therefore assume that based on what we have just explained the judgment of the constitutional court will not offer any protection to employees should they be in contravention of any of the current legislation and/or company policies. Companies may still proceed with disciplinary action that is procedurally and substantively fair.

Now in order to ensure fairness it will, in my opinion be necessary to amend current company policies in the light of the above. It will be necessary to ensure all managers and employees have a thorough understanding of any changes that are made to current policies.

Employees should

  1. Be trained and be made aware of the facts related to cannabis
  2. Be made aware of the effects of cannabis as opposed to alcohol
  3. Be trained on what the new company policy means, how it will be implemented and what the result of breaches of the policy will entail.
  4. Employees need to be made aware of the fact that unlike alcohol which is only detectable for 12 hours after their last drink, cannabis may have an effect for up to 30 days.
  5. What they need to be aware of is that action may well be taken against an employee who is deemed to be “under the influence of cannabis” up to 30 days later.


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