On the 18^th of September 2018, the Constitutional Court handed down a judgment regarding the usage of cannabis which many South Africans may or may not agree on. Many may agree that cannabis is a miracle plant, whilst others believe that it is a gateway drug.

However, the Constitutional Court has ruled on section 4(b) of the Drugs and Drugs Trafficking Act, 104 of 1992 as well as section 22A(9)(a)(i) of the Medicines and Related Substances Control Act, 101 of 1965 being inconsistent with the right to privacy entrenched in section 14 of the Constitution. The judgment has stated that the aforementioned provisions are inconsistent with section 14 insofar as it makes the uses and possession of cannabis, in private, by an adult, a criminal offence.

So, what are the implications of this judgment in terms of the cannabis in the workplace?

As it stands, the judgment stipulates that the use of cannabis and possession thereof pertains to the personal use thereof by an adult in private. However, the Court did not state in-depth where and what “in private” means. It must be borne in mind that the use of cannabis is still illegal in a public area and that it can lead to your arrest. It should also be kept in mind that “the workplace” is classified as a public place, therefore, if you are caught using cannabis at work, this may lead to a criminal and disciplinary offence.

In terms of the use of cannabis in the workplace, there is still much research that needs to be done on how it would affect an employee and their skills in a workplace. It has been suggested that medical evidence is needed to determine the effects  that cannabis will have on an employee in a workplace in terms of their working ability.

Section 7 of the Employment Equity Act, 55 of 1998 permits employers to carry out medical tests on their employees.  It has been suggested by experts that should an employee test positive for cannabis, dismissal is deemed to be too harsh of a sentence. The reason for this is that if an employee uses cannabis on Friday evening and comes to work on Monday, and their employer decides to conduct a medical test, the employee will test positive for cannabis being in their system, even though they may not be “high” when the medical test is conducted.

Here is a breakdown of how long cannabis stays in your system and the different means of testing:

Urine:

Type of Use	How many times a week	How long does it stay in your system?
Occasional use	1 – 2 times a week	3 days
Moderate use	3 – 5 times a week	5 – 7 days
Chronic use	More than 5 times a week	10 – 15 days
Chronic heavy use	Daily	Up to 30 days

 

Blood:

Cannabis can stay in your bloodstream for up to 25 days, again, depending on your usage but typically lasts between 1 to 2 days for occasional users.

Saliva:

Cannabis will stay in your saliva between 1 to 3 days for occasional users and a regular user can test positively for up to 30 days.

When considering if the use of cannabis may be condoned for employees, an employer needs to consider the inherent requirements of a specific job. For example, employees who work with heavy machinery (e.g. bus / truck drivers) are more likely to be prohibited from consuming cannabis based on their line of duties at work. However, its effects on professional employees still needs to be explored in order to determine what the true consequences are and would be. Some may argue that it helps them concentrate better and work more efficiently, whilst others may argue that they are not a functioning human when using cannabis.

The decriminalization of cannabis in South Africa is still a new concept and much research needs to be conducted. The Court has given Parliament 24 months to affect new legislation based on the decriminalization of cannabis and it has been suggested that the bill will be mirror the Tobacco Products Control Act, 83 of 1993.  In the interim, the use and possession of cannabis is acceptable only to a consenting adult for their private use.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.