How South Africa’s new cannabis ruling affects employees – 6 big legal questions answered

On 18 September 2018, the Constitutional Court handed down its much-anticipated judgment on the private use of cannabis in South Africa.

According to Gavin Stansfield, director at Cliffe Dekker Hofmeyr, the judgement undoubtedly has wide implications for society.

“Since the initial challenges launched by Prince (as far back as 2002 and 1998), there are now 33 countries (including Australia, Canada, Spain and Switzerland) around the world that have decriminalised and legalised the use of cannabis,” he said.

“Attitudes towards cannabis have changed, and continue to change, in many countries. These were facts that the High Courts used in support of its ruling and this was mentioned by the Constitutional Court in the Cannabis judgment.”

According to Stansfield the implications for society can be summarised as follows:

  • Adult individuals are now permitted to use, possess and cultivate cannabis in private and for personal consumption only.

“The use (including smoking) of cannabis in public or in the presence of children or non-consenting adults is not permitted,” he said.

“To determine if a person is in possession of cannabis for personal consumption only, the amount of cannabis found in possession must be used to make that determination.

“The higher the amount, the higher the likelihood that the cannabis is not only being used for personal consumption. The Constitutional Court has left it up to the legislature to determine the permissible amount of cannabis that can be legally possessed by an adult,” he said.


Implications for the workplace

Given that the Cannabis judgment does not strictly locate private to an adult person’s home or private dwelling, the implications for the workplace (both from the perspectives of the employer and employee) should be considered, said Stansfield.

“The judgment also raises other employment-related questions relating to discipline, incapacity, occupation health and safety and vicarious liability within the context of drug (cannabis) use and abuse,” he said.

The legal experts at Cliffe Dekker Hofmeyr considered the general implications for employers and employees through a series of six questions and answers below.


1. What does it mean to use, possess or cultivate cannabis ‘in private’?

The judgement makes it clear that ‘in private’ is not confined to one’s “home or private dwelling”.

Put differently, provided that an adult person uses, possesses or cultivates cannabis in a private space (that is not in the public), such conduct will not be subject to criminal sanction.

Although many workplaces are located in private property, it is difficult to argue that workplaces should be considered as private enough for employees to use, possess or cultivate cannabis whilst at work.

In fact, given that workplaces generally have other employees (some of whom may be non-consenting employees), workplaces should be seen as public spaces in this context.


2. Is a workplace classified as a private space?

No. It will be difficult to sustain this argument, particularly in circumstances where the employer has numerous employees in the workplace.


3. Can an employee use, possess or cultivate cannabis in the workplace?

The employer should regulate the issue within its disciplinary code.

The possession and cultivation of cannabis at the workplace should expressly not be permitted and subject to disciplinary action if contravened by an employee. Such an employee may also be subject to criminal proceedings.

The use (particularly smoking) of cannabis (and other drugs) at the workplace should be prohibited by the employer.

The basis of the prohibition would be that the workplace is a public space and that there are non-consenting employees who will be exposed to cannabis. Further, that the use of cannabis (or other drugs) whilst at work will in all likelihood have an impact on the conduct and/or capacity of the employee.

Most employers already have policies in place that deal with alcohol and drug abuse. Following the cannabis judgement, it may be a worthwhile exercise to reconsider those policies to ensure that they adequately deal with the issue of cannabis use in the workplace.


4. What action can an employer take if an employee is found to use, possess or cultivate cannabis in the workplace?

The employer may, depending on the terms of the disciplinary code and procedure, take disciplinary action against such an employee.

Most employers adopt a zero-tolerance policy on alcohol and drug use in the workplace.

It may be worthwhile to consider whether such a policy includes provisions relating to testing of employees in defined circumstances.


5. How should an employee found in possession of cannabis at work be handled by the employer?

In this case, the circumstances surrounding the possession should be investigated by the employer.

Likely, possession may mean that the employee is using cannabis whilst at work or dealing cannabis whilst at work.

The cannabis judgment is clear in holding that an adult person is now permitted to use, possess and cultivate cannabis in private for personal consumption only.

An employee who is found of cannabis whilst in the workplace should be investigated and depending on the outcome of that investigation, the employer may elect to institute disciplinary action against such an employee.


6. What happens if the performance of an employee declines due to the use of cannabis?

Substance abuse can constitute a dismissible offence, particularly where it has resulted in an employee breaking a rule in the workplace (misconduct) or failing to meet performance standards (incapacity).

Depending on the facts and circumstances surrounding each case, an employee who is guilty of cannabis abuse may be disciplined by the employer.

Unlike alcohol, the effects of cannabis use on the employee’s ability to perform in the workplace are not as well known.

This, however, does not detract from the ability to of the employer to investigate and take action against an employee found to be under the influence of cannabis at work.


Read: How South Africa’s new marijuana laws will change driving in the country

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How South Africa’s new cannabis ruling affects employees – 6 big legal questions answered