A lot of ignorance about cannabis was bandied around the Johannesburg Labour Court recently, with one of the most alarming displays coming from Judge Connie Prinsloo, who in a ruling, said that THC, unlike alcohol, could remain in the body for weeks. Therefore, it could be automatically assumed because of cannabis’s “intoxicating nature” that one was automatically impaired for the duration!

This is loose thinking and could affect a lot of innocent people, particularly in light of the recent survey in which 37% of cannabis users admitted to having consumed at work.

And at the heart of the ongoing confusion surrounding the debate around cannabis at the workplace is that it still remains defined as a “undesirable, dependence-producing substance” scheduled in the Drugs and Drugs Trafficking Act. This is despite Government’s stated aim to amend the Act to exclude cannabis. Courts have no alternative but to rely on existing legislation for their rulings, and thus, the State has used the Drugs Act in opposing private cannabis clubs and in all criminal prosecutions relating to cannabis.

In short, Government hasn’t made up its mind as to what cannabis actually is, and people making decisions on cannabis-related law or policy, are largely alarmingly ignorant.

Government schizophrenia is evident in the cannabis cluster of ministries:

• Health believes cannabis is purely a medicine and must be regulated as a potentially dangerous substance, and ideally be an export-only commodity

• Agriculture says it should be classified as an agricultural crop that can generate jobs and alleviate rural poverty;

• Trade says it’s a commodity that’s already an economic reality and that to legalize it would kickstart township economies and bring revenue to the fiscus.

• Justice believes it is an undesirable substance that may only be consumed in the privacy of one’s own home;  and for the foreseeable future will vehemently oppose any form of commercial trade in cannabis products.

• And the President believes it it's a plant that can generate jobs and drive post-Covid economic growth, 

In reality, the President has been completely ineffective in getting his cannabis vision off the ground, cementing the popular perception that under the current Government, nobody is actually in charge.

His cannabis advisor, Garth Strachan, has struggled to get the Justice Department on board to even start aligning policy while anti-cannabis laws are being steamrolled through Parliament.

So, who can blame the public for being confused if there is such chaos upstairs?

But back to Judge Prinsloo. In her ruling at the Johannesburg Labour Court on 1 December 2022, she upheld Springs glass factory PFG’s rights to dismiss two employees who had tested positive for cannabis at work. She said that despite the 2018 Constitutional Court ruling that allowed adults the right to consume cannabis in private, cannabis was still declared a narcotic by the Drugs and Drug Trafficking Act and therefore a company was entitled to have a zero-tolerance approach towards alcohol and drugs. As long as employees were aware of this, testing positive for substances could lead to dismissal.

However, she strayed far off evidence-based thinking in her ruling in Paragraph 80:

“The court noted a difference between the effects of alcohol and cannabis and held that there is no question that, unlike alcohol which leaves an individual’s bloodstream within a few hours after consumption, cannabis may remain present in an individual’s system for a number of days or up to weeks and that tests for cannabis do not demonstrate the degree of impairment of the employee’s ability to perform her or his duties. Unlike alcohol, one cannot determine a level of impairment based on test results. Proof of impairment is therefore not required as with alcohol, it is automatically assumed that one is under the influence of cannabis due to its intoxicating nature”.

In other words Judge Prinsloo is saying that as long as one has THC in one’s system, one is “intoxicated”.

She based part of her ruling on the evidence of the company’s occupational health nurse, a Ms Samson, “who conducted the multi-drug tests and said the outcome was that both tested positive in a for tetrahydrocannabinol (THC), which is a derivative of dagga, or as Ms Samson explained, the scientific name for it”.

To quote Judge Prinsloo: “In cross-examination, the Constitutional Court judgment was canvassed with Ms Samson and she was asked whether she still regarded dagga as a drug. Ms Samson explained that dagga was a mind-altering substance.

Ms Samson confirmed that dagga can be used in a private space, but at the Respondent’s workplace, the Occupational Health and Safety Act applies and it clearly states that an employee cannot be under the influence of alcohol or a substance. The workplace is dangerous and if employees are under the influence of a substance that alters their minds, it is even more dangerous and it poses a safety risk.

The Johannesburg Labour Court proceedings make it clear that cannabis is still seen as a dangerous drug. Although it’s clear that any company is completely entitled not to have a stoned forklift truck driver careering around a factory, there is a fundamental problem with the ruling being based on testing positive for THC and not on impairment.

It's well known that traces of cannabis can last for weeks after ingestion.

Judge Prinsloo acknowledged in her ruling that the dismissed employee at PFG, Nkosinathi Nhlabathi, stated that he was not aware that if he was found to have dagga in his system, it would constitute misconduct.

“He disputed that he contravened the policy because he did not use drugs, but had used dagga three days before he reported for work. According to Mr Nhlabathi, dagga is not a drug and he explained that he was employed in 2016 and since he was employed, he had been smoking dagga and had been doing his job properly. Whatever he did with dagga, he did it at home and not when he was at work.”

However, she rejected this argument on the fallacy that to have traces of THC in one’s blood automatically means one is impaired.

At the end of the day, this was a fundamentally flawed ruling that has no basis in science, with absolutely no justice for the two dismissed employees, who were not stoned at work and were not impaired from doing their jobs.

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