Has the use of marijuana been legalised? Not yet!

marijuana legal
18 May 2017

Before you light up a joint, there are a few things that need to be understood…

Schedule 7 drug

Under our Constitutional law, the use of cannabis is still illegal, with the Medicines and Related Substances Control Act (Medicines Act) listing it as a schedule 7 drug. According to the Medical Control Council, “Schedule 7 substances are not recognised for medical use and have an extremely high potential for abuse or producing dependency which renders their possession unjustifiable and undesirable, except for limited scientific purposes…”

What the High Court ruling has found is there are flaws in the Medicines Act, and the criminalisation and prosecution of adults (18+ years) found to be using marijuana for personal use in the privacy of their own homes, based on one’s constitutional right to privacy. The panel of judges presiding over the case believes there are more constructive ways to handling the situation than labelling adults who like to enjoy the odd joint at home as “criminals”.

[107] …The point of this judgment is that there are a multitude of options available to fight this problem as opposed to the blunt use of criminal law. It is precisely for this reason that this Court contends that less restrictive means must be employed to deal with the problem…

Amending the constitution

The judges’ order, however, does not change the law at a constitutional level and it will be up to the ConCourt to decide to rule upon the findings and recommendations of the High Court and how to implement them.

[112] What this means for the present dispute is that it is not for this Court to prescribe alternatives to decriminalisation of the use of cannabis for personal use and consumption. It is for the legislature and executive to decide on a suitable option of alternatives which can be made after these have been the subject of a deliberative process which is inherent in the idea of Parliament. But as private conduct is prescribed by law, it is within the competence of a Court to hold that the impugned law fails to pass constitutional muster. To that extent, a Court plays a role in the overall response to the problems raised by the present dispute.

Despite declaring sections of the Drugs and Drug Trafficking Act and the Medicines and Related Substances Control Act invalid, the order stated: “This declaration of invalidity is suspended for a period of 24 months from the date of this judgment in order to allow Parliament to correct the defects as set out in the judgment.”

Where are we now?

This means that although the Court disagrees with sections of these particular Acts and has stated that they are unenforceable, they have also conceded that Parliament will need time to review and correct the necessary provisions, and have tasked them to do so within the next two years. The ruling has therefore been put on hold for the next two years and current law still stands.

What this means for your average adult though is this: you still can (and will) be arrested if you are caught in possession of, smoking, or growing marijuana at home. In the interim though, the court has allowed for greater emphasis on personal defence – in that if you are arrested and charged, you will be able to cite a violation of your constitutional right to privacy and potentially be acquitted.

In the workplace

Businesses are no doubt going to have to deal with this issue with employees.

Workplace Policies
If Parliament amends the relevant legislation to give effect to the Prince judgment, employers may have to reconsider how, in the workplace, they deal with the effects of personal cannabis use.

Most employers have policies dealing with alcohol and drug abuse. Depending on the industry and the nature of the employees’ duties, the employer’s approach to alcohol abuse and the sanction imposed may vary. Employers, however, generally adopt a zero-tolerance approach to the use of illegal drugs.

Testing for alcohol is relatively easy. Breathalysers, although not uncontroversial, provide an efficient and quick means to estimate blood alcohol levels through the analysis of a person’s breath. This allows an employer a fairly accurate view of the probable physical and mental impairment of the employee based on the blood alcohol concentration.

If the personal use of cannabis is legalised, it is likely that employees who previously feared the legal consequences of partaking may now do so. This may lead to an increasing focus on cannabis use and its impact on the workplace.

There are a number of ways to test for cannabis. These include urine, hair and blood analysis. Traces of cannabis can be detected for 10 days up to six months after use. In contrast, alcohol may leave the bloodstream within hours after consumption.

Degrees of Impairment
Unlike alcohol, the effects of cannabis on an employee’s ability to perform his or her duties are less well known and the tests are likely to be more complicated and time-consuming. It appears that the tests for cannabis also cannot accurately determine the degree of impairment of the employee to do his or her job.

A more nuanced approached in the workplace will be required for dealing with the use of cannabis than that for alcohol. An employee that has a “drag” in the morning before coming to work may be able to function optimally at work even though technically they may be under the influence. An employee that legally used cannabis on a Friday evening is likely to show traces of the drug if tested at work on a Monday, even though no longer under the influence, and unlikely to be impaired.

As is apparent from the examples provided above, it may be difficult for an employer to justify a dismissal in such circumstances. While an employer may prohibit cannabis use while at work, it would be difficult to police the legal use of a drug that may or may not have an effect in the workplace.

As with alcohol abuse, an employer may take disciplinary action against an employee, without a test, where the effects of cannabis are clearly observable and it is clear that the employee is too impaired to do their job or are a risk to other employees in the workplace.

Any policy aimed at addressing specifically the use of cannabis and its effects in the workplace, would have to take into account factors such as consent to testing for cannabis, the manner of testing, the nature of the employer’s business, the employee’s duties, the circumstances in which the offence was committed, the observable extent of the impairment, and the employee’s history of cannabis or other drug-related offences at work.

Whatever test an employer decides to apply it must comply with s7 of the Employment Equity Act, No 55 of 1998. In terms of s7, the test must be permitted or required by law, or must be justifiable in light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of a job. Any employer wishing to institute random testing for cannabis would have to ensure that the testing is voluntary, confidential and not motivated by victimisation or unfair discrimination.

Misconduct and Incapacity
Employers should be careful to distinguish between misconduct and incapacity when it comes to cannabis use. Where an employee can show an addiction to cannabis, the employer will have to consider whether counselling and rehabilitation may be appropriate steps. This would require that the employer provide assistance to the employee in terms of item 10(3) of the Code of Good Practice: Dismissals.

The fact that cannabis may in future be used by an employee at home does necessarily mean that the employee is entitled to come to work under the influence or with his or her ability to work impaired. The employee is still required to adhere to the employer’s workplace rules and policies. The difficulty employers will face with employees using cannabis is the complexities around proving that an employee’s ability to work was impaired or that the employee was under the influence whilst at work.

See also: The path to the legalisation of marijuana in South Africa

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)

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