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Concourt’s Cannabis ruling and the OHSAct

I have been inundated by calls from clients on the impact of the Constitutional Court ruling on Cannabis and what employers should do next. I will briefly explain the implications of this somewhat controversial topic.

The ban on private possession, consumption and private cultivation of the plant at home was ruled unconstitutional by the Constitutional Court on 18 September 2018 effectively decriminalised both the use and cultivation of cannabis in private.

Deputy chief justice Raymond Zondo, more often found recently probing alleged state capture at the commission of inquiry he helms, delivered the unanimous judgment.

The court not only upheld but expanded on Dennis Davis’ landmark judgment last year that adults using and growing cannabis in the privacy of their own home should be left in peace.

In addition to this, parliament has been given two years to change sections of both the drug trafficking act and the medicine controls act after these sections were found constitutionally invalid.

The Concourt confirmed the ruling of the Western Cape High Court in part and added that the references to “in a private dwelling” or “in private dwellings” is replaced with “in private” or in the case of cultivation, “in a private place.” This is a very significant change as it no longer the restricts the use and possession to the inside of a dwelling, but also includes a vehicle or on one’s person, even your carry-on luggage at the airport.

The court ruled that sections 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 read with Part III of Schedule 2 of that Act and the provisions of section 22A(9)(a)(i) of the Medicines and Related Substances Control Act 101 of 1965 read with Schedule 7 of GN R509 of 2003 published in terms of section 22A(2) of that Act are inconsistent with right to privacy entrenched in section 14 of the Constitution to the extent that the use or possession of cannabis in private by an adult person for his or her own consumption in private is not a criminal offense.

The court also did not specify any quantity restrictions.

While parliament will take up to 24 months to adapt the law to reflect all these changes, Justice Zondo explained that individuals are allowed to smoke privately in their own home in the meanwhile.

Zondo also stressed that both selling the substance and use of it by minors is still illegal.

Employers may now face some challenges from cannabis consuming employees and it imperative that the correct message is conveyed from the out-set.

Why should cannabis be treated differently in lieu of the ConCourt ruling?

General Safety Regulation 2A(1) states that “Subject to the provisions of subregulation (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 subregulation (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”.

Although the Concourt’s order did not include changes to the OHS Act or the GSR’s it does however have some serious implications.

What do you do when an employee comes to work with cannabis in his or her pocket or handbag? It is “in private”. It is thus not illegal.

In the judgement (Order in “100”) Justice Zondo said: ”It seems to me that, indeed, there was no persuasive reason why the High Court confined its declaration of invalidity to the use or possession or cultivation of cannabis at a home or in a private dwelling. In my view, as long as the use or possession of cannabis is in private and not in public and the use or possession of cannabis is for the personal consumption of an adult, it is protected. Therefore, provided the use or possession of cannabis is by an adult person in private for his or her personal consumption, it is protected by the right to privacy entrenched in section 14 of our Constitution.

The judgement also deliberated extensively to the right to privacy, citing numerous arguments in previous cases, but Justice Zondo summarised it appropriately as the right to be left alone.

GSR 2A is in similar fashion thus also in part contrary to the Concourt’s ruling although no order was made to have it amended.

Here are my reasons for saying this:

  1. The purpose of GSR 2(A) is to protect employees from injury (or injuring others) while under the influence of alcohol or drugs. In order to fulfil this purpose:
    1. The employer may not allow a person who is or appears to intoxicated on the premises,
    2. An employee may not work while intoxicated or use while at work, and
    3. If under medication, the employer must consider the side affects and allow an employee to only do such tasks that would not pose a safety or health risk.
  2. The purpose of GSR2(A) was extended to criminalise possession of alcohol or drugs in the phrase “have in his or her possession” in 2(A)2. It is important to note that possession is not illegal if solely for own use in private. And although a Workplace toilet is private the purpose of the regulation is to protect the employee and “use in private while at work” is still illegal.
  3. It is only the part of the regulation referring to possession, which is contrary to the Concourt Ruling and it can also be extended to alcohol and other drugs.

The fact is that “possession” alone, is not sufficient to enforce GSR2(A)2 and companies need to carefully evaluate their Access control procedure. “Possession”, may however be cause for concern for “under the influence.” or dealing in cannabis.

What should an employer do now?

In my opinion, given the extent of privacy argued by the Concourt, employers need to re-evaluate their Alcohol & Drug Abuse policies and procedures through a consultative process and since “use in private of cannabis” is no longer illegal, encourage voluntary disclosure of such use. From there, an assessment can be made as to the extent of controls needed.

Cannabis remains detectable in the human system for up to 30 days, but the “intoxication” effects or short-term effects start to taper off after three or four hours. When cannabis is ingested, its effects peak between four and six hours.

The regulatory reference “appear to be under the influence” has often caused companies to “test and be sure” of intoxication but given the time lapse, one would never be 100% certain. One therefore needs to be extremely cautious not to subject an employee to undue corrective action in the interest of safety, where there are no legal grounds to do so.

Please also note that the above applies only to pure cannabis and not any derivative laced with hard core drugs such as mandrax etc.


Also read the Considerations when developing an Alcohol & Drug Policy here.

You may also look at the OHS Considerations here.

 

 

 

 

Rudy_D Maritz
Rudy is an experienced SHEQ Legal advisor and has more than 30 years experience in criminal, maritime and environmental law. He is the CEO of the Cygma Group in South Africa, incorporating Cygma SHEQ (SA)(Pty)Ltd, Cygma Property Risk Management and Cygma Solutions. Rudy is also an Author for Sheqafrica.com and was the Magazine's publisher until April 2018.
He worked for various industries, including law enforcement, fishing, transport, logistics, construction, and telecommunications. For the last 5 years, he has been a facilitator for ECSA accredited CPD training in Construction Contracts & Risk Management.

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