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As you should know by now, cannabis has been decriminalised for personal and private use in South Africa.

Whilst that is a good starting point, the Cannabis for Private Purposes Bill, which was tabled in Parliament in September, sadly does not deliver the goods.

Industry experts have gone as far as to say that the draft has ‘completely missed the mark’, shutting the door where a chance for real economic growth presented itself.

The murky legal ground that currently exists around the use of cannabis was recently the subject of a Commission for Conciliation, Mediation and Arbitration (CCMA) hearing, when Ofentse Rakang challenged his firing.

Rakang was dismissed from his job as a picker at the Rankeng/Signature Cosmetics and Fragrance company in June 2019, “after reporting for duty under the influence of dagga”, reports GroundUp’s Tania Broughton.

Management instructed him to take a drug test after he admitted that he had smoked a “zol” at 5AM that morning, two hours before he reported for work.

He tested positive, but disputed that this rendered him incapable of working:

Supervisor Farhaad Ebrahim testified at the hearing that Rakang had arrived late for work and he had called him to his office to explain why. He said Rakang’s eyes were red and watery and while he initially thought he might have a cold or flu, Rakang had insisted he was not sick.

On further questioning he had admitted to smoking “weed” at home. Rakang had then become argumentative and, because of that, Ebrahim concluded he was under the influence of drugs, which were outlawed by company policy.

Representing himself, Rakang argued that since he was allowed to continue working that day, it brought into question whether or not his performance was in any way affected by testing positive for cannabis.

CCMA commissioner Nomsa Mbileni clearly figured that argument held water:

“The problem with a charge of being under the influence of drugs is that there has not been any scientific determination of whether there is an impairment of performance,” she said.

Rakang’s eyes were red and watery but there was no evidence of impairment that would suggest an inability to perform tasks. On the contrary, he was allowed to work.

“In my view that was an acceptance that though he admitted to smoking cannabis, and subsequently tested positive for it, it had not affected his ability to perform his work,” the commissioner concluded.

Ultimately, Rakang’s dismissal was ruled too harsh, and the company was ordered to reinstate him.

He will have a written warning against his name for the next 12 months, and was not granted back pay for the period during which he remained dismissed.

Each CCMA hearing is unique (which is why it’s worth having a quick consult with a lawyer, at the very least), so there’s no grand precedent set here.

If you want to toke it up before work, you’ll have to make your own case.

Just one of the perks of working from home, I guess.

Red eyes are far less noticeable over a Zoom call…

[source:groundup]