SEALINE - South African Angling and Boating Community > Non-Angling Discussion Area > Lounge > So.... the "Holy Herb" is finally legal.....
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|So.... the "Holy Herb" is finally legal.....|| Rate Topic
|Posted: Thu Sep 20th, 2018 02:26 am||
Dr halibut hoffman wrote:
LOL... agree 100% on the Surgeon, perhaps I am biased on some positions / jobs.... say your kids are in a lift club etc.... and one of the drivers (perfect safe driver) indulge in the herb or is known to, well of course one can imagine the reaction by the parents involved in the lift club...
Last edited on Thu Sep 20th, 2018 02:27 am by Serra Moz
|Posted: Thu Sep 20th, 2018 06:23 am||
|Battle won, but war not over to get full legislation, says 'Dagga Couple'
Cape Town - The “Dagga Couple” have set their sights on a mass class action against the state, to free those who have criminal records for the possession of dagga.
This follows the Constitutional Court’s landmark judgment on Tuesday declaring the private use and cultivation of dagga legal.
Myrtle Clarke and Jules Stobbs are in the process of creating a database to bring the class action in future. Clarke told the Cape Times that their war was far from over.
“We will keep fighting for everybody. The battle has been won, the war is not over. The war is to get complete legalisation, so all citizens can benefit economically,” she said.
“This ruling also doesn’t deal with criminal records, people in prison or stay of prosecution cases that have been put on hold pending this outcome.”
Clarke said the worst-affected were young people looking for jobs, possibly wanting to travel.
Advocate Rodney de Kock, the Director of Public Prosecutions in the Western Cape, said: “The ruling is prospective, which means it does not apply to cases that were in the criminal justice system already.
"At the time of the decision of the Western Cape High Court, a decision was taken not to enrol those cases which met the qualifying criteria – that is a small amount of cannabis for personal private consumption,” he said.
He said prosecutors would exercise their discretion and allow those cases that were provisionally withdrawn pending the Concourt decision to be closed without further prosecution.
“With regard to applications for records to be expunged if there are any such applications, each will be dealt with on its own merits,” De Kock said.
Meanwhile, Jeremy Acton from the Dagga Party said if they attained enough power in the 2019 elections, “we will wipe all records” in this regard.
“We want to write the law. We want for ourselves, legalising the plant completely, but it has to happen in Parliament,” said Acton.
“The ruling is great. It allows people to get access to this medicine, it creates a private community-based economy and keeps it away from corporations. We have to get to Parliament so it cannot be sold out to corporates.”
The couple called on all those affected to submit their details to http://www.Fieldsofgreenforall.org.za
The contact form can be found on their “Jointheq” tab.
|Posted: Thu Sep 20th, 2018 09:13 am||
Dr halibut hoffman
|Those wheels are turning..
Spoke to my lawyer who was there in the court for the historic occasion..elation all round..once he is finished with the huge work load we will join up for a legal fatty..on the weekend out of worktime
F'king great world to be in..everywhere i go people have their plants in the ground already! This end of summer is going to be one everyone forgets ever happened..Ey victory never tasted so sweet LOL
Last edited on Thu Sep 20th, 2018 09:14 am by Dr halibut hoffman
|Posted: Thu Sep 20th, 2018 09:21 am||
|Dr halibut hoffman wrote:
Those wheels are turning..
hehehehe, true - whilst they sort out the "finer shite" at least the okes can now cool off in their own houses and like you said, 'display' their plants..
Sadly where I reside, highly illegal, specially if you are a muzungu...hmmfff, yet it's the port of entry of all types of drugs..
|Posted: Thu Sep 20th, 2018 10:29 am||
|Why the ConCourt decision to legalise dagga for private use is a good thing
South Africa’s Constitutional Court has passed down a judgment that makes it legal for adults to cultivate and smoke marijuana in their homes. The court – the country’s highest – ruled that the right to privacy was violated by prohibiting the possession, purchase or cultivation of cannabis for personal consumption by an adult in a private dwelling.
The case was pursued by various parties, including a Cape Town lawyer, Gareth Prince, who is a practising Rastafarian. It was opposed by, among others, the country’s ministers of Justice and Constitutional Development, Police and Health; the country’s National Director of Public Prosecutions and the NGO Doctors for Life International.
The Constitutional Court’s judgment is to be applauded for doing away with the moralistic and paternalistic assumption that marijuana use by adults in private is always wrong and unhealthy. South Africa joins a number of countries that have taken a similar step, among them Canada and Portugal.
But there are still lots of uncertainties that need to be cleared up before South Africans can use marijuana without fear of prosecution. One of these is that the country’s laws will have to be brought into line with the judgment.
What the court found
In making its ruling, the Constitutional Court considered several issues. These included privacy, health concerns and the status quo in other parts of the world.
Delivering the unanimous judgment, Deputy Chief Justice Raymond Zondo stated that “the right to privacy entitles an adult person to use or cultivate or possess cannabis in private for his or her personal consumption”. And, he added,
to the extent that the impugned provisions criminalise such cultivation, possession or use of cannabis, they limit the right to privacy.
The court also examined the medical evidence that was used when the case was first brought to a lower court – the Western Cape High Court – as well as evidence from a 2002 case about the religious use of marijuana. It found no persuasive medical evidence that dagga in small amounts was harmful to users, particularly compared to the harm resulting from use of alcohol. Nor was there proof that marijuana use caused violent or aggressive behaviour or that its use led to the use of more potent or dangerous drugs.
The Constitutional Court noted that the personal consumption of small quantities of marijuana had been decriminalised or legalised in many other democratic countries.
The State failed to prove that the existing limitation of privacy was reasonable and justifiable. The relevant legal provisions that criminalise personal, private use of dagga by adults were declared unconstitutional and invalid. That order was suspended for 24 months. This will give parliament time to rectify the constitutional defects.
In the interim, the court ordered, adults who use, possess or cultivate cannabis in private for their own personal consumption are not guilty of contravening these provisions.
The personal consumption exception has been widely celebrated. But it raises various practical difficulties.
First, it’s less than clear under what circumstances the personal consumption exception will apply. According to the Constitutional Court, police officers will have to determine this on a case by case basis. To do so, they’ll need to consider factors such as the quantity of cannabis in the person’s possession and whether they can give a satisfactory account of their possession.
Uncertainty relating to how the exception is to be enforced in practice is problematic. It may even mean that the exception violates the so-called principle of fair warning. This rule requires criminal law provisions to be clearly formulated so those subject to them know ahead of time what they may and may not do.
Second, while the Constitutional Court judgment confirms the Western Cape High Court’s findings in many respects, it also differs in important ways. Significantly, the Constitutional Court held that there was no persuasive reason for the High Court to confine its declaration of invalidity to marijuana use in a home or private dwelling.
The Constitutional Court envisages instead that, provided dagga is used “in private and not in public”, it is protected by the right to privacy, even if the adult in question is not at home or in a private dwelling. It uses the example of someone who has cannabis in their pocket for private consumption, and then steps outside their home or dwelling. Provided the cannabis remains in their pocket and is for personal use, it still falls within the constitutional protection.
This seemingly broadens the exception proposed by the High Court. But once again, it remains to be seen how the courts will interpret the distinction between public and private use in practice.
Another aspect of the High Court judgment the Constitutional Court refused to confirm relates to the order declaring that provisions prohibiting the purchase of cannabis were invalid. The Constitutional Court argued that allowing people to purchase marijuana would amount to sanctioning dealing in cannabis.
This aspect of the judgment raises a legitimate practical concern: how is an adult user of cannabis supposed to acquire the marijuana they’re allowed to use in private if they don’t buy it from a dealer of some sort (which the Constitutional Court explicitly says is illegal)?
The user could grow their own. But they would need to obtain the seeds or buy them from someone else – who is, by definition, a dealer. The judgment’s implication seems to be that to exercise one’s (constitutionally-protected) right to use marijuana in private, one must inevitably act illegally since any purchase of marijuana and related products makes one an accomplice to dealing in cannabis.
* Mary Nel is a senior lecturer in Public Law at Stellenbosch University.
|Posted: Thu Sep 20th, 2018 10:43 am||
|In any case they don’t have the savvy and the gumption to catch and prosecute the dealer.
Years back the magistrate threw my case out the court - possession of 250grams
What the f@@k she said this is wasting my time
|Posted: Thu Sep 20th, 2018 11:19 pm||
In any case they don’t have the savvy and the gumption to catch and prosecute the dealer.
LOL...same same in Durban circa 92, appeared once, and was told they don't have time to waste on debating a "bankie"... They have more important cases going about, however... at that time all the KZN political killings were the flavours of the day, so perhaps very lucky thatday??, I can understand as they brought about 15 gents shackled to the 10s! Super armed cops etc...Maybe just my luck? In KZN, I know about lots of cases that did not even make it to the courts, of course not referring to a taxi load of "skyf"... but you average stop of 5, few pencils here and there, and a "bankie" or 2....
|Posted: Sat Sep 22nd, 2018 12:10 pm||
Dr halibut hoffman
Braaivleis, rugby, sunny skies and... dagga
Thanks a bunch, Your Honours, but now that I can use dagga in private, there’s no fun in it any more. The thrill of the illicit has gone and my devil-worshipping has been reduced to mere gesture, a ritual void of meaning.
I jest, of course. It is only the delusional who truck with Satan these days, and they were out in force following the Constitutional Court’s ruling, muttering darkly of the legislative crisis, mental breakdowns and social upheavals lurking in the offing.
We are a terrified nation, it seems, and there was much hysteria on the talk shows as callers blathered on fearfully about children whose parents would now take to cannabis like lemmings, stoned drivers on the roads and, laughably, asset managers not exercising due fiduciary prudence with their clients’ investments.
More soberly, the response from most of the political parties was guardedly neutral. Worryingly, there was talk of “responsible” adult use, which reeked of apartheid’s joyless Calvinism.
Seriously, how do you get responsibly stoned, and is it any fun? The whole point of being off your face is that you regress to adolescence: your brain melts, you eat peanut butter cookies and you giggle at silly videos on YouTube.
Besides, was there concerned prattle of responsible buggery when sodomy was legalised? No, I don’t think so either.
The lunatic fringe also had their two cents’ worth.
Like many others, Bheki Cele, the funny police minister, hauled out the tired propaganda about marijuana being a gateway drug. If anything, research suggests that coffee’s more likely to lead to harder drugs than any other substance.
Still, cannabis remains the gateway trigger with the botherers and hard of thinking; one mention of dagga, and they’re off, immediately churning out heroin horror stories.
According to the Citizen newspaper, Cele also claimed that, had Deputy Chief Justice Raymond Zondo consulted with him, well, marijuana users would all still be breaking the law and liable for prosecution.
Whatever Cele had been smoking, it certainly wasn’t dagga.
Needless to say, the Mahogany Ridge stoners welcome the court’s decision. As it is, we wouldn’t have stopped doing dagga had the judges ruled otherwise, and this is true of the millions of South Africans who regularly use the drug.
The ruling is certainly apposite, this being Heritage Month and what-what. Is anything more Saffer than home-grown? Like braaivleis and rugby, weed is more likely to get the nation to socially cohere than Arts and Culture Minister Nathi Mthethwa’s ugly “I Am The Flag” campaign.
We may be (stifled yawn) a young democracy, but it’s been a part of our culture for centuries. João dos Santos, the Portuguese missionary who rounded the Cape in 1586, noted that cannabis was grown here and the locals ate it to get stoned.
It was the Dutch who later taught them to smoke, and the practice was more or less tolerated for the next 250 years.
It was only with the coming of sugar - which, as it turns out, is a way more harmful and addictive substance - that prohibition began in earnest as concerns rose that a mellow and stoned labour pool would negatively impact on profits.
There is some irony here. As part of the worldwide movement away from sugar, one of the world’s major pushers of the stuff, Coca-Cola, is now considering a soft drink product containing cannabidiol, a marijuana extract that has calming, analgesic properties.
Admittedly, cannabidiol has no psychoactive effects. But that’s okay. We throw brandy in our Coke, which brings something deranged to the table.
But, bottom line, there’s a lot of tom in dagga. Parliament has two years in which to frame up new laws, legalising the whole caboodle - from tourist-friendly Amsterdam-style cafés to the industrial park-sized medical marijuana-growing facilities - will surely wrest major revenue from the black markets.
For all the dope, it really is a no-brainer.
* The views expressed here are not necessarily those of Independent Media.
|Posted: Sat Sep 22nd, 2018 12:20 pm||
Dr halibut hoffman
|On the labour law.. This written before the appeal lost by the state but post the high court judgement...
Flying high – Weed in the workplace
By Jose Jorge, Director and Steven Adams, Associate, Employment, Cliffe Dekker Hofmeyr
In the last few weeks, several news outlets have suggested that the use of cannabis is now legal. Before employees are emboldened to light up, it’s important to note that this isn’t what the High Court found.
In Prince v Minister of Justice and Constitutional Development and Others  ZAWCHC 30, the Western Cape High Court reasoned that the “blunt” instrument of criminal law as employed under the current legislation is disproportionate to the harms that the legislation seeks to curb insofar as the personal use and consumption of cannabis is concerned.
The Court declared parts of the Drugs and Drug Trafficking Act, No 140 of 1992 and the Medicines and Related Substances Control Act, No 101 of 1965 inconsistent with the Constitution to the extent that they encroach upon private use and consumption of cannabis for personal purposes. The Court suspended its declaration of invalidity for two years to allow Parliament to correct the defects in the legislation.
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 up to 10 days to six months after use. In contrast, alcohol may leave the bloodstream within hours after consumption.
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.
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 under the influence whilst at work.
The Occupational Health and Safety implications of the Prince judgment will be addressed in another alert by Fiona Leppan, a Director in our Employment law practice area.
For more information contact Jose Jorge at or Steven Adams at
Article published with the kind courtesy of Cliffe Dekker Hofmeyr http://www.cliffedekkerhofmeyr.com
|Posted: Sat Sep 22nd, 2018 12:22 pm||
Dr halibut hoffman
|And post the appeal, popular articles on the same..Pretty much what was said here..
The Constitutional Court has ordered the decriminalisation of dagga for personal use – but that doesn't mean you can't be fired for using cannabis.
Policies on inebriation are still in force, and in some jobs a legal requirement, even though they'll need to be adjusted.
Things will be particularly complicated over the next two years, while changes are made to legislation.
Smoking dagga can still get you fired, under the right circumstances. And staying away from cannabis – at least just before you go to work – could still be a legitimate requirement for some jobs.
But things got a whole lot more complicated after the Constitutional Court on Tuesday said the use of dagga is not a criminal act.
And during the two-year period the ConCourt gave Parliament to bring legislation in line with the Constitution, things are going to be particularly difficult when it comes to people getting high on the job, experts say.
See also: We took a scientific look at whether dagga or alcohol is worse for you — and there appears to be a winner
"This is a curveball," Richard Malkin, managing director of company wellness provider Workforce Healthcare, told Business Insider South Africa after the Concourt judgment, even if, ultimately, "nothing is really going to change from a workplace perspective."
Occupational health and safety rules demand that companies keep the workplace safe, and that includes making sure nobody operates dangerous machines while inebriated – whatever the substance of choice.
For jobs involving heavy machinery, Malkin says, policy should require employees to disclose, up front, if they are using tranquillisers, for instance, even if under the direction of a doctor.
"The requirement is that you can't be under the influence of any mind-altering substance; whether it is legal or illegal doesn't really come into play."
Jobs in finance, or customer-facing jobs such as call centre agents advising customers, should also come with policies on inebriation.
But testing for dagga use is not as straight-forward as a breathalyser test for alcohol. The common, cheap, and fast urine test for cannabis actually detects a metabolic product that can linger for days – well after the user is no longer mentally affected.
So what happens if that test shows dagga use, and you tell the boss you smoked dagga days before? Right now, at least, Malkin believes the only thing a company could do is ask for a spectrophotometric test, which takes around two days and costs around R2,000.
In the meantime, the employee will have to be temporarily suspended from sensitive duties, as a precaution.
The result of such a test could be grounds for dismissal, speculate labour specialists who were still studying the ConCourt ruling, on the basis of dishonesty. Using dagga may not be a firing offence, but lying about it could be.
First, though, there could be a considerable fight about the whole process.
"Someone may have okayed drug testing by a company in a contract, but now that company can no longer look at THC [the active ingredient in cannabis]," says Quintin van Kerken, of The Clear Option, an organisation that works in the cannabis and addiction-treatment industry.
"It is pointless, because THC now falls under your right to privacy, so they can't do anything with a THC test."
Van Kerken believes there will be test cases about cannabis intoxication and medicinal use of cannabis in the workplace – perhaps soon – but until then there will be considerable confusion about the matter.
In the meanwhile, employees and employers both had better look at the exact wording of policies around drugs and inebriation at work, because a blanket reference to "alcohol, illegal drugs, and prescription medication", such as those now commonly found, don't strictly apply do dagga anymore.
|Posted: Sat Sep 22nd, 2018 12:32 pm||
Dr halibut hoffman
|And more..and pretty much what was said here..and I especially love all the judgement that was handed down regarding the right to privacy, which believe me will have more far reaching concequences in the future on everyones' lives in SA than the dope will..
"The judgment also deliberated extensively to the right to privacy, citing numerous arguments in previous cases, but Judge Zondo summarised it appropriately as the right to be left alone."
I am a private person and have always maintain that I have the "right to be left alone" if bothering no-one. This is how nature works and through obvious natural law could always be forced through the courts but the fact that it has now been recognized by the highest court in that manner means that one does not need to go that avenue..it is a brave new world ahead and with those in power on this planet clamoring to have the superior A 'aye to rule us all. This is a major victory in SA. Things like warrantless electronic surveillance, rica, fica, android and its parent, spacebook. smart phone surveillance, city wide and transport network surveillance, national voice print databases..etc.. could all now be sliced and diced in court in a simple manner due to this precedent when it gets to that as it is now obvious that those things are wholly unconstitutional and clearly illegally implemented in South Africa..
Stoned staff? What are employers' rights regarding weed in the workplace?
By: Rudy D Maritz
The ban on private possession, consumption and private cultivation of marijuana at home was ruled unconstitutional by the Constitutional Court on 18 September 2018, effectively decriminalising both the use and cultivation of dagga in private. What, however, does this mean for employers, and what should they do next?
Stoned staff? What are employers' rights regarding weed in the workplace?
© luis carlos jimenez del rio – 123RF.com
Deputy chief justice Raymond Zondo, more often found recently probing alleged state capture at the commission of inquiry he helms, delivered the unanimous judgment.
The court not only upheld but expanded on Dennis Davis’ landmark judgment last year that adults using and growing marijuana in the privacy of their own home should be left in peace.
In addition to this, parliament has been given two years to change sections of both the drug trafficking act and the medicine controls act after these sections were found constitutionally invalid.
ConCourt rules to decriminalise the personal use of marijuana
ConCourt rules to decriminalise the personal use of marijuana
NEWSWATCH: The Constitutional Court's landmark judgment that every pot-smoker across South Africa has been waiting for since the Cape High Court ruled in favour of decriminalising the use of marijuana, has been made...
18 Sep 2018
The ConCourt confirmed the ruling of the Western Cape High Court in part and added that the references to “in a private dwelling” or “in private dwellings” is replaced with “in private” or in the case of cultivation, “in a private place.” This is a very significant change as it no longer restricts the use and possession to the inside of a dwelling, but also includes a vehicle or on one’s person, even your carry-on luggage at the airport.
The court ruled that sections 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 read with Part III of Schedule 2 of that Act and the provisions of section 22A(9)(a)(i) of the Medicines and Related Substances Control Act 101 of 1965 read with Schedule 7 of GN R509 of 2003 published in terms of section 22A(2) of that Act are inconsistent with right to privacy entrenched in section 14 of the Constitution to the extent that the use or possession of cannabis in private by an adult person for his or her own consumption in private is not a criminal offence.
The court also did not specify any quantity restrictions.
While parliament will take up to 24 months to adapt the law to reflect all these changes, Justice Zondo explained that individuals are allowed to smoke privately in their own home in the meanwhile.
Zondo also stressed that both selling the substance and use of it by minors is still illegal.
Employers may now face some challenges from cannabis-consuming employees and it imperative that the correct message is conveyed from the out-set.
What should be treated differently in lieu of the ConCourt ruling?
General Safety Regulation 2A(1) states that “Subject to the provisions of subregulation (3), an employer or a user, as the case may be, shall not permit any person who is or who appears to be under the influence of intoxicating liquor or drugs, to enter or remain at a workplace.
(2) Subject to the provisions of subregulation (3), no person at a workplace shall be under the influence of or have in his or her possession or partake of or offer any other person intoxicating liquor or drugs.
(3) An employer or a user, as the case may be, shall, in the case where a person is taking medicines, only allow such person to perform duties at the workplace if the side effects of such medicine do not constitute a threat to the health or safety of the person concerned or other persons at such workplace”.
Although the ConCourt’s order did not include changes to the OHS Act or the GSR, it does however have some serious implications.
Weed in the workplace
What do you do when an employee comes to work with cannabis in his or her pocket or handbag? It is “in private”. It is thus not illegal.
In the judgment (Order in “100”) Judge Zondo said: “It seems to me that, indeed, there was no persuasive reason why the High Court confined its declaration of invalidity to the use or possession or cultivation of cannabis at a home or in a private dwelling. In my view, as long as the use or possession of cannabis is in private and not in public and the use or possession of cannabis is for the personal consumption of an adult, it is protected. Therefore, provided the use or possession of cannabis is by an adult person in private for his or her personal consumption, it is protected by the right to privacy entrenched in section 14 of our Constitution.
Legalising marijuana would create a minefield in the workplace
Legalising marijuana would create a minefield in the workplace
As marijuana smokers await the ConCourt decision on whether or not the substance should be legalised, the matter casts a spotlight on the adequacy of company policies regarding substance abuse in the workplace...
8 Feb 2018
The judgment also deliberated extensively to the right to privacy, citing numerous arguments in previous cases, but Judge Zondo summarised it appropriately as the right to be left alone.
GSR 2A is in similar fashion thus also in part contrary to the ConCourt’s ruling although no ruling was made.
Here are my reasons for saying this:
The purpose of GSR 2(A) is to protect employees from injury (or injuring others) while under the influence of alcohol or drugs. In order to fulfil this purpose:
The employer may not allow a person who is or appears to intoxicated on the premises,
An employee may not work while intoxicated or use while at work, and
If under medication, the employer must consider the side affects and allow an employee to only do such tasks that would not pose a safety or health risk.
The purpose of GSR2(A) was extended to criminalise possession of alcohol or drugs in the phrase “have in his or her possession” in 2(A)2. It is important to note that possession is not illegal if solely for own use in private. And although a workplace toilet is private, the purpose of the regulation is to protect the employee and “use in private while at work” is still illegal.
It is only the part of the regulation referring to possession, which is contrary to the ConCourt ruling and it can also be extended to alcohol and other drugs.
The fact is that “possession” alone is not sufficient to enforce GSR2(A)2, and companies need to carefully evaluation their access control procedure. “Possession” may however be cause for concern for “under the influence.”
What should an employer do now?
In my opinion, given the extent of privacy argued by the ConCourt, employers need to re-evaluate their alcohol and drug abuse policies and procedures through a consultative process and since the “use in private of cannabis” is no longer illegal, encourage voluntary disclosure of such use. From there, an assessment can be made as to the extent of controls needed.
Cannabis remains detectable in the human system for up to 30 days, but the “intoxication” effects or short-term effects start to taper off after three or four hours. When marijuana is ingested, its effects peak between four and six hours.
The regulatory reference “appear to be under the influence” has often caused companies to “test and be sure” of intoxication but given the time lapse, one would never be 100% certain. One therefore needs to be extremely cautious not to subject an employee to undue corrective action in the interest of safety, where there are no legal grounds to do so.
Last edited on Sat Sep 22nd, 2018 12:36 pm by Dr halibut hoffman
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