In 2018, the Constitutional Court of South Africa legalised the cultivation and use of cannabis, provided that it is for private use by an adult person in a private place.

In her master’s-degree research carried out at the North-West University (NWU), Advocate Dineo Mongwaketsi looked at the legal implications of the legalisation of cannabis for employers and employees.

The purpose of this study was to determine how the two competing interests – personal rights and employers’ rights – ought to be dealt with, and when it is considered reasonable and justifiable to limit the right to use cannabis in your own private dwelling in so far as it overlaps with the workplace.

Dineo says this judgment has far-reaching implications for cannabis users.

“Prior to 2018, the use of cannabis was criminalised in the Republic of South Africa. As a result, there was a strict prohibition on the use of cannabis in the workplace.”

Cannabis users saw the Constitutional Court ruling as a long-awaited victory. “Despite that, the issue of a public and a private place would create confusion for others, especially employees, on whether their workplace constitutes a private or public place. Specifically, I looked at the legal implications when employees in the workplace test positive for the use of cannabis,” says Dineo.

What complicates matters is that people use cannabis for different reasons, including spiritual or religious reasons, for recreation and as therapy for different ailments.

Dineo says that prior to 2018, the consequences or implications of the use of cannabis in the workplace were simple and straightforward: dismissal.

“However, the Constitutional Court matter in Minister of Justice and Constitutional Development v Prince 2018 JOL 40399 (CC) changed the legal position on the use of cannabis,” she says.

“That ruling has created an issue with respect to the labour law aspects. Employees using cannabis in their own private dwelling can overlap with the workplace and contradict various workplace provisions contained in the employer’s code of conduct,” says Dineo.

“There is a need for clarity regarding the right of employees to use cannabis in their own private dwellings compared to the duty of employers to provide a safe working environment,” she concludes.

Adv Dineo Mongwaketsi