On the 18th of September 2018 the Constitutional Court handed down a judgement which is being widely reported to have legalized marijuana for private use within the Republic of South Africa. What does this mean for your business? Before we get to the direct impact on you, the employer, let us first consider the background of the judgement as it currently exists:
Western Cape High Court
On the 31st of March 2017, Judge Davis from the Western Cape High Court issued a court order which declared specific laws relating to Marijuana use unconstitutional. Specifically the order was in relation to Sections 4(b) and 5(b) of the Drugs and Drug Trafficking Act, 1992 (Act No. 140 of 1992) read along with Schedule 2 of that act and Sections 22A(9)(a)(i) and 22A(10) of the Medicines and Related Substances Control Act, 1965 (Act No. 101 of 1965) read with Schedule 7 of that Act.
This order was suspended for a period of twenty-four (24) months in order to allow the Constitutional Court an opportunity to rule in terms of Section 172 of the Constitution of the Republic of South Africa (Act 108 of 1996) as to whether this judgement may stand, as well as allowing Parliament to issue amendments to the relevant legislation governing and/or otherwise regulating the use and/or possession of Marijuana.
Section 4(b) of the Drugs and Drug Trafficking Act
“4. Use and possession of drugs.-
No person shall use or have in his possession-
( b) any dangerous dependence-producing substance or any undesirable dependence-producing substance, unless-
(i) he is a patient who has acquired or bought any such substance-
(aa) from a medical practitioner, dentist or practitioner acting in his professional capacity and in accordance with the requirements of the Medicines Act or any regulation made thereunder; or
(bb) from a pharmacist in terms of an oral instruction or a prescription in writing of such medical practitioner, dentist or practitioner, and uses that substance for medicinal purposes under the care or treatment of the said medical practitioner, dentist or practitioner;
(ii) he has acquired or bought any such substance for medicinal purposes-
(aa) from a medical practitioner, veterinarian, dentist or practitioner acting in his professional capacity and in accordance with the requirements of the Medicines Act or any regulation made thereunder;
(bb) from a pharmacist in terms of an oral instruction or a prescription in writing of such medical practitioner, veterinarian, dentist or practitioner; or
(cc) from a veterinary assistant or veterinary nurse in terms of a prescription in writing of such veterinarian, with the intent to administer that substance to a patient or animal under the care or treatment of the said medical practitioner, veterinarian, dentist or practitioner;
(iii) he is the Director-General: National Health and Population Development who has acquired or bought any such substance in accordance with the requirements of the Medicines Act or any regulation made thereunder;
(iv) he, she or it is a patient, medical practitioner, veterinarian, dentist, practitioner, nurse, midwife, nursing assistant, pharmacist, veterinary assistant, veterinary nurse, manufacturer of, or wholesale dealer in, pharmaceutical products, importer or exporter, or any other person contemplated in the Medicines Act or any regulation made thereunder, who or which has acquired, bought, imported, cultivated, collected or manufactured, or uses or is in possession of, or intends to administer, supply, sell, transmit or export any such substance in accordance with the requirements or conditions of the said Act or regulation, or any permit issued to him, her or it under the said Act or regulation;
(v) he is an employee of a pharmacist, manufacturer of, or wholesale dealer in, pharmaceutical products, importer or exporter who has acquired, bought, imported, cultivated, collected or manufactured, or uses or is in possession of, or intends to supply, sell, transmit or export any such substance in the course of his employment and in accordance with the requirements or conditions of the Medicines Act or any regulation made thereunder, or any permit issued to such pharmacist, manufacturer of, or wholesale dealer in, pharmaceutical products, importer or exporter under the said Act or regulation; or
(vi) he has otherwise come into possession of any such substance in a lawful manner.”
Section 5(b) of the Drugs and Drug Trafficking Act
“5. Dealing in drugs.
-No person shall deal in-
(b) any dangerous dependence-producing substance or any undesirable dependence-producing substance, unless-
(i) he has acquired or bought any such substance for medicinal purposes-
(aa) from a medical practitioner, veterinarian, dentist or practitioner acting in his professional capacity and in accordance with the requirements of the Medicines Act or any regulation made thereunder;
(bb) from a pharmacist in terms of an oral instruction or a prescription in writing of such medical practitioner, veterinarian, dentist or practitioner; or
(cc) from a veterinary assistant or veterinary nurse in terms of a prescription in writing of such veterinarian, and administers that substance to a patient or animal under the care or treatment of the said medical practitioner, veterinarian, dentist or practitioner;
(ii) he is the Director-General: National Health and Population Development who acquires, buys or sells any such substance in accordance with the requirements of the Medicines Act or any regulation made thereunder;
(iii) he, she or it is a medical practitioner, veterinarian, dentist, practitioner, nurse, midwife, nursing assistant, pharmacist, veterinary assistant, veterinary nurse, manufacturer of, or wholesale dealer in, pharmaceutical products, importer or exporter, or any other person contemplated in the Medicines Act or any regulation made thereunder, who or which prescribes, administers, acquires, buys, transships, imports, cultivates, collects, manufactures, supplies, sells, transmits or exports any such substance in accordance with the requirements or conditions of the said Act or regulation, or any permit issued to him, her or it under the said Act or regulation; or
(iv) he is an employee of a pharmacist, manufacturer of, or wholesale dealer in, pharmaceutical products, importer or exporter who acquires, buys, transships, imports, cultivates, collects, manufactures, supplies, sells, transmits or exports any such substance in the course of his employment and in accordance with the requirements or conditions of the Medicines Act or any regulation made thereunder, or any permit issued to such pharmacist, manufacturer of, or wholesale dealer in, pharmaceutical products, importer or exporter under the said Act or regulation.”
Part III of Schedule 2 of the Drugs and Drug Trafficking Act
This defines what constitutes a Schedule 2 Drug (Undesirable Dependence-Producing Substances) and included in this list is Tetrahydrocannabinol (THC), the active component of marijuana. The wording goes further to include any derivative, origin (plant, seed etc) and other form of THC.
The Drugs and Drug Trafficking Act therefore specifically makes it illegal to possess, make use of or distribute Marijuana and this is the very portion which is being declared unconstitutional.
Section 22A(9)-(10) of the Medicines Act
“(9)(a) No person shall-
(i) acquire, use, possess, manufacture, or supply any Schedule 7 or Schedule 8 substance, or manufacture any specified Schedule 5 or Schedule 6 substance unless he or she has been issued with a permit by the DirectorGeneral for such acquisition, use, possession, manufacture, or supply: Provided that the Director-General may, subject to such conditions as he or she may determine, acquire or authorise the use of any Schedule 7 or Schedule 8 substance in order to provide a medical practitioner, analyst, researcher or veterinarian therewith on the prescribed conditions for the treatment or prevention of a medical condition in a particular patient, or for the purposes of education, analysis or research;
(ii) manufacture, use or supply any Schedule 5 or Schedule 6 substance for other than medicinal purposes, unless he or she has been issued by the Director-General with a permit for such manufacture, use or supply upon the prescribed conditions.
(b) Notwithstanding paragraph (a), the Director-General may at any time revoke any permit issued in terms of that paragraph if any condition on which the permit was issued is not being complied with.
(c) A permit issued in terms of this subsection shall be valid for a period of 12 calendar months after the date of issue thereof.
(10) Notwithstanding anything to the contrary contained in this section, no person shall sell or administer any Scheduled substance or medicine for other than medicinal purposes: Provided that the Minister may, subject to the conditions or requirements stated in such authority, authorise the administration outside any hospital of any Scheduled substance or medicine for the satisfaction or relief of a habit or craving to the person referred to in such authority.”
The Constitutional Court Judgement
In the judgement, the court orders confirmation of the previous High Court matter and therefore has given legal effect to that judgement with a small revision relating to what exactly about the above notes sections are deemed to be unconstitutional.
The short answer is that the court has now declared that the use and cultivation of Marijuana for private purposes and in private should rather be considered in the same manner as, for example alcohol. It goes further to offer reasonable protections for such persons as may be transporting Marijuana to- and from a private place for private consumption.
It must be noted, however that this judgement is again suspended for twenty-four (24) months, meaning that in the interim, the current laws remain in their current form, furthermore, it must be noted that nothing precludes the acts to be amended from including regulatory wording which may still restrict Marijuana use. This suspensive clause has the effect that, for now, no changes to the application of the law and policies regarding Marijuana has occurred.
The impact on Business
While in the interim, there are no changes to the status quo, the envisioned amendments will likely change this, however the question becomes, how does one treat an employee who has acted entirely legally by consuming Marijuana at his own house after hours but then tests positive in contravention to the Company’s disciplinary procedures?
The simple answer is that, once the acts are amended, the Employee has every right to engage in such legal activities as he chooses in his own time, as long as it does not impact on his ability to render service to his employer. Meaning that he cannot be found to be under the influence of Marijuana at work. This means that it remains a form of misconduct in a similar vein as Alcohol where warranted and reasonable.
The complicated problem here, however, becomes that while Breathalyzer and Blood Alcohol Volume tests have proven effective at proving the level of intoxication in an individual, the testing technology with regards to THC is not at the same level. A urine test will likely show only that an individual had consumed THC within the past few days/weeks where a blood could test positive for several weeks or even months. Hair follicle and Fatty Tissue tests can determine for a period of years that an Employee partook, but none of these tests can test the current level of intoxication.
The challenge therefore becomes proving that the Employee was intoxicated or otherwise under the influence of Marijuana, and here, a similar approach to that used in Alcohol cases (Bloodshot Eyes, Smell of the Substance, General Demeanor) could well prove to present the necessary balance of probabilities that the Employee is intoxicated, when used in conjunction with such tests.
So is Marijuana Legal?
For the time being, and pending amendments to legislation, Marijuana possession remains an offence in terms of the relevant acts and while it is likely that police will not prosecute new cases for Marijuana related offences, there has been no immediate change to these laws.
This means that until the legislature has enacted amendments in line with the judgement that Employers are entitled to regulate Marijuana as if a criminal offence.
It should, however, be stressed that Employers should reconsider the validity of their existing policies and, where necessary, seek assistance in revising such policies to accommodate the very likely legalization of Marijuana in the near future.
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