On 18 September 2018 the Constitutional Court of South Africa legalised the use of cannabis in a private capacity. 

South Africa joins Uruguay, Georgia, Canada and nine US states including the District of Columbia in legalizing recreational cannabis, while Australia, Canada, Chile, Colombia, Germany, Greece, Israel, Italy, the Netherlands, Peru, Poland and the United Kingdom have legalized the medical use of cannabis.

In a workplace setting, this ruling may have an effect on the implementation of an employers’ alcohol / substance abuse policy. Let's take a closer look at the South African situation as an example of how these types of rulings could affect a workplace.

What was decided in South Africa?

The Constitutional Court declared that the following legislation which criminalised the use, possession, purchase and cultivation of cannabis was unconstitutional:

• sections 4(b) and 5(b) of the Drugs and Drug Trafficking Act 140 of 1992
• sections 22A(9)(a)(i) and 22A(10) of the Medicines and Related Substances Control Act 101 of 1965.

These sections were found to be inconsistent with the right to privacy guaranteed by section 14 of the Constitution of the Republic of South Africa, 1996, but only to the extent that they prohibit the use, possession, purchase or cultivation of cannabis by an adult person in a private dwelling for his or her consumption.

The judgement decriminalises the following activities:

• use or possession of cannabis by an adult in private for that adult's personal consumption in private
• cultivation of cannabis by an adult in a private place for that adult’s personal consumption in private.

The use or possession of cannabis by a child anywhere, or by an adult in public, is not decriminalised.

What is the status of cannabis in South Africa now?

The Constitutional Court suspended its order for a period of 24 months to give Parliament an opportunity to correct the constitutional defects in the two Acts.

The official status for cannabis is that it is now “decriminalised”. However, dealing cannabis, selling it on to others or smoking it outside the confines of your own home remains an illegal practice.

Adults are now allowed to grow, use and cultivate the substance on their own property. All other matters, including the quantity of cannabis that an adult person may use, possess or cultivate in order for it to amount to “personal use”, the potential for sin taxes and how users can buy cannabis, must be outlined by government in legislation. 

How does this affect the workplace?

Employers have a duty to ensure that the workplace is safe and can be held personally responsible if a safe working environment is not provided. Section 2A of the Occupational Health and Safety Act: General Safety Regulations, 1986 places an obligation on the employer to prevent employees that appear to be under the influence of intoxicating liquor or drugs from entering or remaining in the workplace.

The legislation is however not prescriptive on how an employer determines whether an employee is under the influence. It is up to the employer to ensure that its policy deals with this, including the acceptable levels, which depend on the nature of the job and the risks associated with doing it safely.

Much like the consumption of alcohol, the use of cannabis at home has now become legal, however cannabis may remain in a person’s systems for days after its use, which may affect an employee’s alcohol / substance abuse test results.

The measures taken to deal with an intoxicated employee depends on the employer’s drug and alcohol / substance abuse policy, and this can range from disciplinary action to dismissal.

It is important that the policy reflect the intentions of the employer in all situations before the employer takes action on an employee, and all employees need to be made aware of this policy before signing their employment contract.

Please note: This correspondence is not intended to be, and does not constitute, legal advice or opinion.

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