the Constitutional Court

The personal use of cannabis has been decriminalised in South Africa by the Constitutional Court in Minister of Justice and Constitutional Development and Others v Prince 2018 (10) BCLR 1220 (CC). The Constitutional Court held that it is permissible for adult persons to possess, use or cultivate cannabis in a private place for that person’s own personal consumption. However, the court did not give much clarity on how this will be implemented in our daily lives and it was left to the legislator to fill the gaps.

One of the important questions that arose from this judgment is what would be classified as private space? Looking from an employment perspective, would your personal office or any isolated space at the workplace be classified as personal space? And if so, would your employer be able to prevent you from personally consuming cannabis at the workplace?

In 2000, the legislator brought the Cannabis for Private Purposes Bill (“the Bill”) before Parliament. In terms of the Bill, ‘‘private place’’ means any place, including a building, house, room, shed, hut, tent, mobile home, caravan, boat, or land (or any portion thereof) to which the public does not have right of access. Furthermore, ‘‘personal use’’ is defined as “the exclusive use of an adult person”. Should your office space be isolated from the space which customers/clients/patients have access to, would that mean that the office on the work premises would be classified as a “private place’’ and open for private consumption?

What is important to note is that the working environment is often regulated by specific policies and rules. These rules and policies are often put in place for the health and safety of the public, staff members, and/or for the nature of the service provided or product produced. Should there be a policy in place that prohibits the possession or consumption of drugs on the work premises or restricts employees from working while under the influence of any drugs, the employee may still be subject to disciplinary procedures. Therefore, just because the personal consumption of cannabis has been decriminalised, it does not mean that it will not be seen as an offence in the workplace.

What then happens when there is no policy in place that prohibits the personal consumption of cannabis on the work premises? The legislator also aims to protect minors and persons who are not cannabis smokers. The Bill criminalises any public smoking or consumption of cannabis, any private smoking or consumption in the immediate presence of children or non-consenting adults, as well as any private smoking or consumption near a window or vent adjacent to another structure or public space which would cause hindrance to others.

At this moment in time, the Bill has not been enacted and therefore its provisions cannot be enforced. However, employees should be wary of taking the risk of consuming cannabis at a work premises or working while under the influence of cannabis. This could be seen as misconduct and will be subject to disciplinary procedures should there be a policy in place. Furthermore, it is also important to note that your work environment, depending on each case’s specific circumstances, will not always be seen a “private place” and, therefore, the employee can still be criminally charged with an offence.

Reference List:

Minister of Justice and Constitutional Development and Others v Prince 2018 (10) BCLR 1220 (CC).
CANNABIS FOR PRIVATE PURPOSES BILL.
Rob Cooper and Andrew Levy (Seminar) – discussions on the decriminalisation of Cannabis affect drugs and testing in the workplace.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your financial adviser for specific and detailed advice. Errors and omissions excepted (E&OE)