The media has been awash with reports (sometimes conflicting, often vague) of what the recent Constitutional Court ruling actually means in practice.<\/p>\n
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Whether you agree with the ruling or not, and whether or not you personally have ever had (or intend to have) anything to do with cannabis\/marijuana\/weed\/dagga, we all need to be aware of the implications. Here\u2019s some food for thought \u2013<\/p>\n
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\u2022 Err on the side of caution<\/strong>: Parliament has two years to change the relevant Acts to cure their constitutional defects. Until it does so, there will be many grey areas and your best course of action is always going to be to err on the side of caution. You really don\u2019t want to be funding a test case in court, particularly if your job or your clean criminal record is at stake.<\/p>\n <\/p>\n \u2022 The limits of the ruling<\/strong>: The Court\u2019s decision has not comprehensively \u201clegalised dagga\u201d. What it has done is to provide that, until the Acts are amended, it could not be a criminal offence for an adult person \u2013<\/p>\n o To use or be in possession of cannabis in private for his or her personal consumption in private; and <\/p>\n \u2022 The danger of arrest<\/strong>: As the Court put it, if a police officer finds a person in possession of cannabis and thinks it is not for personal consumption, then \u201cHe or she will ask the person such questions as may be necessary to satisfy himself or herself whether the cannabis he or she is in possession of is for personal consumption. If, having heard what the person has to say, the police officer thinks that the explanation is not satisfactory, he or she may arrest the person. Ultimately, it will be the court that will decide whether the person possessed the cannabis for personal consumption.\u201d Similar considerations will, said the Court, apply to questions around cultivation.<\/p>\n <\/p>\n There is also no clarity on what will be considered to be a \u201cprivate place\u201d other than the Court\u2019s comment that there are places other than \u201ca person\u2019s home or a private dwelling\u201d where the right to privacy would apply.<\/p>\n <\/p>\n The bottom line \u2013 you still risk arrest on suspicion of having or growing more dagga than a police officer considers reasonable for your personal consumption, or in a place that you consider \u201cprivate\u201d but that a police officer doesn\u2019t.<\/p>\n <\/p>\n \u2022 Driving under the influence<\/strong>: Our law provides that: \u201cNo person shall on a public road \u2026 drive a vehicle or occupy the driver\u2019s seat of a motor vehicle of which the engine is running \u2026 while under the influence of intoxicating liquor or a drug having narcotic effect\u201d (our underlining). Effective testing by police if you are pulled over is another matter entirely, but does anyone really want to risk a stay in a police cell while a test is arranged?<\/p>\n <\/p>\n \u2022 In the workplace<\/strong>: Since the court\u2019s ruling applies only to \u201cprivate places\u201d it seems unlikely that employees could ever get away with use or possession in a standard office situation. But what about an employee pitching for work whilst still under the influence? Practical issues of proof aside, it is probably an extremely bad idea. Employees have a general duty to perform their functions properly and doing anything to compromise that probably puts you at risk of at the very least a disciplinary warning. Of course anyone in a job where 100% sobriety is a non-negotiable necessity (think heavy machinery operators, surgeons, pilots and the like) risks a lot more than just a warning.<\/p>\n <\/p>\n Employers: a final note <\/p>\n [This article was originally published in the LawDotNews October 2018 newsletter. To view the full October 2018 newsletter please go to this link<\/a>.]<\/p>\n","protected":false},"excerpt":{"rendered":" The media has been awash with reports (sometimes conflicting, often vague) of what the recent Constitutional Court ruling actually means in practice. Whether you agree with the ruling or not, and whether or not you personally have ever had (or intend to have) anything to do with cannabis\/marijuana\/weed\/dagga, we all need to be aware …<\/p>\n
\no To cultivate cannabis in a private place for his or her personal consumption in private.
\nAny form of supply or purchase, even in private, and any possession or use by a minor (under 18), anywhere, would still put you at risk of a criminal record and heavy penalties.<\/p>\n
\nHaving a properly-drawn \u201csobriety policy\u201d in place will reduce the risk of confusion and dispute in the workplace. If you have a policy in place already, ask your lawyer to check that it adequately covers you in light of these new developments.<\/p>\n