On 18 September 2018, the Constitutional Court of South Africa confirmed the 2017 Western Cape High Court judgement in the matter of Prince v Minister of Justice and Constitutional Development and others, thereby legalising the use and cultivation of Dagga for private use. The Court confirmed that the ban on the use of Dagga at home went against the constitutional right to privacy.
This landmark judgement makes it lawful for individuals to freely use dagga and grow enough for personal consumption at home, however certain limitations were clearly stated. Dagga may only be used privately in homes, not publicly, and cultivating is only for private use, whereas dealing or sale of Dagga to others remains a criminal offence. Public use of dagga remains illegal.
The Constitutional Court is the highest court in South Africa and no other legislation or documentation would supersede its judgements. This includes Labour law, disciplinary codes, and policies.
The question we are now faced with is how this judgement will affect employers going forward?
Employers often have zero tolerance policies regarding drug or alcohol use in the workplace, which would still remain enforceable in terms of this latest judgement as public use is still illegal. But charging dagga users with being under the influence of drugs will no longer be as straight forward.
The problem comes in when we test for being under the influence of dagga. Dagga users can legally use dagga after work in the privacy of their home and still test positive when they arrive at work the next day. Dagga can remain in the system and be detected for approximately 14 days after use, depending on dose and frequency of consumption. But the high or intoxicating effects it has on the user only lasts for 2 to 6 hours. This means that dagga users could test positive for having cannabis metabolites in their system, meaning that dagga was consumed within the last 14 days, but that would not be sufficient proof that the individual is actually under the influence or affected by the drug at the time the test is done. The company would need to submit additional evidence, such as observational tests in which the user displayed clear symptoms of being under the influence of cannabis, in order to find an employee guilty of an offence in terms of company policies or codes.
As a result of the above, companies should consider adapting existing drug policies to make allowances for the fact that private use of cannabis cannot be prohibited. Disciplinary codes will have to change and incorporate a more specialised approach when it comes to testing for dagga use or being under the influence of dagga in order to find a person guilty of being under the influence of drugs. Testing will have to include observation tests of suspected drug users to confirm that the person truly is still being affected by the drug.
Charges such as unauthorised consumption of drugs at work, or unauthorised possession of drugs at work, would however still remain valid and disciplinary action can legitimately be taken against employees who breach these rules.
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