In March 2017 the Western Cape High Court passed down a landmark judgment in Prince v Minister of Justice and Constitutional Development and Others, declaring that possession, cultivation and use dagga at home, for private use, would be allowed in South Africa.
The court found that to ban the use of cannabis by adults in their private homes is an infringement of the right to privacy as set out in section 14 of the Constitution. The limitations on this right, as set out in section 36, could not justify such an infringement. The court requires that the Drug Trafficking Act, as well as the Medicines Control Act be amended within 24 months as sections of these Acts are now constitutionally invalid due to the judgment delivered.
Impact on Industry
Cannabis is one of the most prominent substances detected in drug screens around the world and although a great many studies have been conducted on cannabis use, there is a wide scope of conclusions in these studies. This is evident from the fact that cannabis has long been known as an “evil weed” while simultaneously being used for medicinal purposes.
What we know for certain is that individuals demonstrate impaired motor performance when under the influence of cannabis and that cannabis stays in the system after its psychoactive effects wear off. This creates a dilemma for industry as act such as the Occupational Health and Safety as well as the Mine Health and Safety, places an obligation on Employer’s to prevent workers that are under the influence of intoxicating substances to conduct work. In terms of the above ruling, workers will now be allowed to use cannabis in their homes, however, will be difficult to test whether a person is under the influence of the drug while at the workplace. Undeniably, the construction, transport, industrial and mining industries will most likely carry the greatest risk to safety but even office environments can be affected due to decreased productivity in general. The legal status of cannabis does not remove this threat.
A long road lays ahead to implement necessary changes to existing laws as well as possibly drafting new legislation and/or policies that would need to be tested in court, before there will be absolute clarity on how far this right will reach. In the meantime, industry needs to consider how it will be affected by the legal changes and how best to exercise its duty of care, protect itself and its employees going forward.
It is advised that industry adopts specific policies in relation to cannabis use and testing in the workplace well ahead of the 24-month deadline for legislation to be amended. However, bearing in mind that the limitation of rights has not been tested with specific reference to safety in the workplace. Nevertheless, legalisation still has to be fleshed out by parliamentary process and then supplemented by regulation.
Some guidance to compile an effective policy may include the following:
- Consider different classes of workers and the risk their job responsibilities carry in relation to cannabis use. Workers staying on company property will require special guidance as to whether their place of residence is seen as a ‘private’ residence.
- Keep up with the latest statutory and decisional developments. Policies will most likely need regular revision to ensure that they stay up to date with new legal obligations and rights. The organisation must further stay mindful of the fact that medical cannabis use may also become legalised and will most likely need to be dealt with in a separate policy.
- Consult with workplace health and safety committees.
- Investigate different testing methods to be used. The most common testing methods available at present are blood, urine and salvia tests which are not reliable in relation to when cannabis was used. Testing of saliva is the most effective method to determine recent use but is said to not always be reliable.
- Take reference from countries which have legalised cannabis use either medically or recreationally.
- Ensure that workers are notified and understand new policy.