The question before the Court was essentially whether the legal prohibition on the use and cultivation of cannabis by an adult in private for his/her personal consumption constituted a limitation on the right to privacy enshrined in section 14 of the Constitution. If so, the Court was required to determine whether that limitation was reasonable in terms of section 36 of the Constitution.
Understandably, the Court placed a great deal of emphasis on its previous judgments concerning the nature of the right to privacy. By way of example, in Case v Minister of Safety and Security the Court held as follows in respect of the possession of prohibited pornography: –
“What erotic material I may choose to keep within the privacy of my home, and only for my personal use there is nobody’s business but mine. It is certainly not the business of a society or the State. Any ban imposed on my possession of such material for that solitary purpose invades the personal privacy which section 13 of the interim Constitution (Act 200 of 1993) guarantees that I shall enjoy”.
The Court also held that it was not necessarily impermissible for the State to limit persons from possessing certain items in their homes, but that any such limitation must be justifiable.
In respect of the private cultivation and use of cannabis, the Court held that its limitation was not constitutionally justifiable inter alia for the following reasons: –
there was no cogent evidence before the Court that the use of cannabis causes criminal behaviour or leads to its users behaving violently or aggressively;
the authorities do not suggest that the use of cannabis leads to the use of more potent and dangerous drugs;
the South Africa Central Drug authority had noted that “alcohol is the substance that causes the most individual and societal harm” and that the immediate focus in respect of cannabis should be decriminalization;
the Court had previously held, albeit in a minority judgment, that there is no medical evidence to suggest that it would be impossible to regulate the consumption of cannabis by restricting it to a safe level.
Ultimately, the Court set aside certain sections of the Drugs and Drug Trafficking Act 140 of 1992 and the Medicines and Related Substances Control Act 101 of 1965 on the basis that they are unconstitutional to the extent that they prohibit:-
“the use or possession of cannabis by an adult in private for that adult’s personal consumption in private…” (Emphasis added).
Certain of the conclusions of the Constitutional Court are controversial and may either suggest that the case was not properly argued, for example by leading the evidence of expert witnesses, or that the Judgment has not considered the medical, psychological and social implications in sufficient depth.
Critically, the Judgment does not amount to the ‘legalization’ of cannabis but merely the decriminalisation of its cultivation, possession or use when done in private.
Consequently, section 2A of the General Safety Regulations published in terms of the Occupational Health and Safety Act 85 of 1993 remains applicable to employers. That section inter alia provides as follows:-
“an employer … shall not permit any person who is or who appears to be under the influence of any intoxicating liquor or utilized drugs, to enter or remain at the workplace”.
Similarly, notwithstanding the decision of the Constitutional Court, the rules, practices and procedures adopted by employers in relation to drug use remain in force and employees who are under the influence of any drugs at the workplace which are not medically prescribed, may be disciplined and dismissed.
In order to avoid any confusion on the part of employees, a communique should be issued to them explaining the impact of the legislation and the policy of the employer. To that end, the meaning of “private” must be explained to employees.
Employers should also review their policies on drug use to ensure that they are up to date and sufficiently deal with the consequences of the Judgment and legislative changes.