Author: Eben van Deventer

News

Dagga Legalized?

On the 18th of September 2018 the Constitutional Court handed down a judgement which is being widely reported to have legalized marijuana for private use within the Republic of South Africa. What does this mean for your business?

Before we get to the direct impact on you, the employer, let us first consider the background of the judgement as it currently exists:

Western Cape High Court

On the 31st of March 2017, Judge Davis from the Western Cape High Court issued a court order which declared specific laws relating to marijuana use unconstitutional. Specifically the order was in relation to Sections 4(b) and 5(b) of the Drugs and Drug Trafficking Act (Act 140 of 1992) read along with Schedule 2 of that act and Sections 22A(9)(a)(i) and 22A(10) of the Medicines and Related Substances Control Act (Act 101 of 1965) read with Schedule 7 of that Act.

This order was suspended for a period of twenty-four (24) months in order to allow the Constitutional Court an opportunity to rule in terms of Section 172 of the Constitution of the Republic of South Africa (Act 108 of 1996) as to whether this judgement may stand, as well as allowing Parliament to issue amendments to the relevant legislation.

Section 4(b) of the Drugs Act

“4. Use and possession of drugs.-No person shall use or have in his
possession-
( b)  any dangerous dependence-producing substance or any undesirable dependence-producing substance,
unless-
  (i)  he is a patient who has acquired or bought any such substance-
    (aa)  from a medical practitioner, dentist or practitioner acting in his professional capacity and in accordance with the requirements of the Medicines Act or any regulation made thereunder; or
    (bb)  from a pharmacist in terms of an oral instruction or a prescription in writing of such medical practitioner, dentist or practitioner, and uses that substance for medicinal purposes under the care or treatment of the said medical practitioner, dentist or practitioner;
  (ii) he has acquired or bought any such substance for medicinal purposes-
    (aa)  from a medical practitioner, veterinarian, dentist or practitioner acting in his professional capacity and in accordance with the requirements of the Medicines Act or any regulation made thereunder;
    (bb)  from a pharmacist in terms of an oral instruction or a prescription in writing of such medical practitioner, veterinarian, dentist or practitioner; or
    (cc)  from a veterinary assistant or veterinary nurse in terms of a prescription in writing of such veterinarian, with the intent to administer that substance to a patient or animal under the care or treatment of the said medical practitioner, veterinarian, dentist or practitioner;
  (iii)  he is the Director-General: National Health and Population Development who has acquired or bought any such substance in accordance
with the requirements of the Medicines Act or any regulation made thereunder;
  (iv)  he, she or it is a patient, medical practitioner, veterinarian, dentist, practitioner, nurse, midwife, nursing assistant, pharmacist, veterinary
assistant, veterinary nurse, manufacturer of, or wholesale dealer in, pharmaceutical products, importer or exporter, or any other person contemplated in the Medicines Act or any regulation made thereunder, who or which has acquired, bought, imported, cultivated, collected or manufactured, or uses or is in possession of, or intends to administer, supply, sell, transmit or export any such substance in accordance with the requirements or conditions of the said Act or regulation, or any permit issued to him, her or it under the said Act or
regulation;
  (v)  he is an employee of a pharmacist, manufacturer of, or wholesale dealer in, pharmaceutical products, importer or exporter who has acquired, bought, imported, cultivated, collected or manufactured, or uses or is in possession of, or intends to supply, sell, transmit or export any such substance in the course of his employment and in accordance with the requirements or conditions of the Medicines Act or any regulation made thereunder, or any permit issued to such pharmacist, manufacturer of, or wholesale dealer in, pharmaceutical products, importer or exporter under the said Act or regulation; or
  (vi)  he has otherwise come into possession of any such substance in a lawful manner.”

Section 5(b) of the Drugs Act

“5. Dealing in drugs.-No person shall deal in-
  (b)  any dangerous dependence-producing substance or any undesirable dependence-producing substance, unless-
    (i)  he has acquired or bought any such substance for medicinal purposes-
      (aa)  from a medical practitioner, veterinarian, dentist or practitioner acting in his professional capacity and in accordance with the requirements of the Medicines Act or any regulation made thereunder;
      (bb)  from a pharmacist in terms of an oral instruction or a prescription in writing of such medical practitioner, veterinarian, dentist or practitioner; or
      (cc)  from a veterinary assistant or veterinary nurse in terms of a prescription in writing of such veterinarian, and administers that substance to a patient or animal under the care or treatment of the said medical practitioner, veterinarian, dentist or practitioner;
    (ii)  he is the Director-General: National Health and Population Development who acquires, buys or sells any such substance in accordance with the requirements of the Medicines Act or any regulation made thereunder;
    (iii)  he, she or it is a medical practitioner, veterinarian, dentist, practitioner, nurse, midwife, nursing assistant, pharmacist, veterinary assistant, veterinary nurse, manufacturer of, or wholesale dealer in, pharmaceutical products, importer or exporter, or any other person contemplated in the Medicines Act or any regulation made thereunder, who or which prescribes, administers, acquires, buys, transships, imports, cultivates, collects, manufactures, supplies, sells, transmits or exports any such substance in accordance with the requirements or conditions of the said Act or regulation, or any permit issued to him, her or it under the said Act or regulation; or
    (iv)  he is an employee of a pharmacist, manufacturer of, or wholesale dealer in, pharmaceutical products, importer or exporter who acquires, buys, transships, imports, cultivates, collects, manufactures, supplies, sells, transmits or exports any such substance in the course of his  employment and in accordance with the requirements or conditions of the Medicines Act or any regulation made thereunder, or any permit issued to such pharmacist, manufacturer of, or wholesale dealer in, pharmaceutical products, importer or exporter under the said Act or regulation.”

Part III of Schedule 2 of the Drugs Act

This defines what constitutes a Schedule 2 Drug (Undesirable Dependence-Producing Substances) and included in this list is Tetrahydrocannabinol (THC), the active component of marijuana. The wording goes further to include any derivative, origin (plant, seed etc) and other form of THC.

The Drugs Act therefore specifically makes it illegal to possess, make use of or distribute Marijuana and this is the very portion which is being declared unconstitutional.

Section 22A(9)-(10) of the Medicines Act

“(9)(a)  No person shall-
    (i)  acquire, use, possess, manufacture, or supply any Schedule 7 or Schedule 8 substance, or manufacture any specified Schedule 5 or Schedule 6 substance unless he or she has been issued with a permit by the DirectorGeneral for such acquisition, use, possession, manufacture, or supply:
Provided that the Director-General may, subject to such conditions as he or she may determine, acquire or authorise the use of any Schedule 7 or Schedule 8 substance in order to provide a medical practitioner, analyst, researcher or veterinarian therewith on the prescribed conditions for the treatment or prevention of a medical condition in a particular patient, or for the purposes of education, analysis or research;
    (ii)  manufacture, use or supply any Schedule 5 or Schedule 6 substance for other than medicinal purposes, unless he or she has been issued by the Director-General with a permit for such manufacture, use or supply upon the prescribed conditions.
  (b)  Notwithstanding paragraph (a), the Director-General may at any time revoke any permit issued in terms of that paragraph if any condition on which the permit was issued is not being complied with.
  (c)  A permit issued in terms of this subsection shall be valid for a period of 12 calendar months after the date of issue thereof.

(10)  Notwithstanding anything to the contrary contained in this section, no person shall sell or administer any Scheduled substance or medicine for other than medicinal purposes: Provided that the Minister may, subject to the conditions or requirements stated in such authority, authorise the administration outside any hospital of any Scheduled substance or medicine for the satisfaction or relief of a habit or craving to the person referred to in such authority.”

The Constitutional Court Judgement

In the judgement, the court orders confirmation of the previous High Court matter and therefore has given legal effect to that judgement with a small revision relating to what exactly about the above notes sections are deemed to be unconstitutional.

The short answer is that the court has now declared that the use and cultivation of Marijuana for private purposes and in private should rather be considered in the same manner as, for example alcohol. It goes further to offer reasonable protections for such persons as may be transporting Marijuana to- and from a private place for private consumption.

It must be noted, however that this judgement is again suspended for twenty-four (24) months, meaning that in the interim, the current laws remain in their current form, furthermore, it must be noted that nothing precludes the acts to be amended from including regulatory wording which may still restrict Marijuana use.

The impact on Business

While in the interim, there are no changes to the status quo, the envisioned amendments will likely change this, however the question becomes, how does one treat an employee who has acted entirely legally by consuming Marijuana at his own house after hours but then tests positive in contravention to the Company’s disciplinary procedures?

The simple answer is that, once the acts are amended, the Employee has every right to engage in such legal activities as he chooses in his own time, as long as it does not impact on his ability to render service to his employer. Meaning that he cannot be found to be under the influence of Marijuana at work. This means that it remains a form of misconduct in a similar vein as Alcohol where warranted and reasonable.

The complicated problem here, however, becomes that while Breathalyzer and Blood Alcohol Volume tests have proven effective at proving the level of intoxication in an individual, the testing technology with regards to THC is not at the same level. A urine test will likely show only that an individual had consumed THC within the past few days/weeks where a blood could test positive for several weeks or even months. Hair follicle and Fatty Tissue tests can determine for a period of years that an Employee partook, but none of these tests can test the current level of  intoxication.

The challenge therefore becomes proving that the Employee was intoxicated, and here, a similar approach to that used in Alcohol cases (Bloodshot Eyes, Smell of the Substance, General Demeanor) could well prove to present the necessary balance of probabilities that the Employee is intoxicated, when used in conjunction with such tests.

Talent Factory News

Talent Factory Entry Details

Talent Factory Logo

Audition day Sat 8 September 2018 from 10:00 @ Eventcity.

Audition Rules

Categories

  1. Vocal solo
  2. Vocal group
  3. Vocal & Band
  4. Instrumental solo
  5. Instrumental Band
  6. Stand-up comedy
  7. Magic& related performance

MUSIC GENRE’S

  1. POP
  2. ROCK & ROLL
  3. COUNTRY
  4. CLASSIC
  5. BOEREMUSIEK
  6. BACKGROUND / INSTRUMENTAL/ACOUSTIC

A panel of four judges will evaluate each performance.

A decision will be made immediately after or during the performance whilst the participant is still on stage.

  1. Entries only for 18 and over.
  2. NO KARIOKE!!!!!
  3. Entries are free.
  4. Entries only for stipulated categories and genres.
  5. Any Participant may enter in more than one genre or category.
  6. Entry forms are be available for download on www
  7. Entries must be done via entry form and submitted by mail to the following email address: lezaan@hrcity.co.za (complete form and scan and mail please) or per hand at SHOCKWAVE MUSIC STORE (att: Gerard)
  8. Rules and entry forms can be downloaded from: https://wp.me/s91ZkQ-contest
  9. Each participant will be granted a max of 10 minutes preparation and a max of 4 minutes to perform his act.
  10. Backtracks may be used.
  11. The auditions will be open for the public.
  12. Basic sound equipment (Amps and mixers) and sound engineer will be supplied.
  13. Bands that enter will discuss their setup time and time slot with the judges before the auditions will commence.
  14. The artist himself must supply any other equipment that is required for the audition.
  15. The judges will evaluate on the following basis:
    • Commercial value – i.e. would your act/song be suitable at corporate, private, public events etc.
    • Technical –  how good is your voice control/ instrument control/ use of mic and props etc.
    • Interaction with audience/judges
    • Use of sound equipment, mic, instruments etc.
    • It is recommended that any music (voice& instrumental) auditions be done with a well-known cover song. A self-composed song might be to your disadvantage as it might be difficult to evaluate. (Remember it is not a talent/ art competition)
  16. Should the judges be uncertain about a participants performance they may request a second performance on the spot.
  17. Should the Judges have a split decision or cannot decide on a winner in a category a play-off will be arranged to determine the winner for that category. In such a case, the participants will be required to do a different song/performance.
  18. Prizes will be awarded on the judges sole discretion
  19. Judges decisions will be final.

PRIZES

  1. INHOUSE CONTRACT WITH EVENTCITY TO PERFORM AT EVENTS HOSTED BOTH INHOUSE AND OUTSIDE AS PER DEMAND WITH APPLICABLE FEE.
  2. PROMOTION AND EXPOSURE VIA EVENTCITY.
  3. PRIZE AS PER DOBE ENTERTAINMENT WICH INCLUDES PRODUCTION OF DEMO CD AND MUSIC VIDEO AS WELL AS ONLINE DISTRIBUTION.
  4. PHOTO SHOOT BY PHOTO DEPICTION FOR SONG COVER MATERIAL.
  5. CASH PRIZE (R5000)

(Prizes will be awarded on the judge’s sole discretion)

ORGANISER : Ben van der Merwe

Download the Official entry here, complete and send via email to lezaan@hrcity.co.za

HospitalityWorkers News

Hospitality Sector Minimum Wages 2018/19

From the 1st of July 2018, the minimum wages for the Hospitality Sector will be increased as follows:

As a sector employing vulnerable workers [The Department of Labour] the regulation of working conditions in this sector enjoys special attention from the Department of Labour.

Another important consideration here is that due to the nature of work in this sector, employees are often paid low “Basic” wages with the addition of commission.  Read more “Hospitality Sector Minimum Wages 2018/19”

Minimum-Wage News

The Minimum Wage Bill and Amendments to Labour Legislation,…

Following recent news that the National Assembly has passed the long awaited Minimum Wage Bill as well as the proposed amendments to the Labour Relations Act and the Basic Conditions of Employment Act, it is important to take note of what these amendments actually mean to you, the Employer:

While it was widely announced that these amendments would come into effect on the 1st of May 2018 after they were initially published for public comment in late 2017, there have been major debates surrounding the specifics of these changes which necessitated a delay.

With the new president getting involved and negotiating strongly for the finalization of these amendments, a major milestone has been reached as the Bills are now passed on for a final round of stakeholder comments before they are passed to the National Council of Provinces. Once this has happened and been finalized, all that would remain is for these proposed amendments to be promulgated into law. Read more “The Minimum Wage Bill and Amendments to Labour Legislation, What you should Know?”

Retail-Store News

Minimum Wages for the Wholesale and Retail Sector –…

From the 1st of February 2018, the minimum wages for the Wholesale and Retail sector will be increased. This annual increase is valid for twelve (12) months until the 28th of February 2019 in stark contrast to the increases tabled for the Domestic Workers and Contract Cleaning Sectors earlier this year. It stands to be seen how this extended period of validity will play into the proposed Minimum Wage Bill (Read Our Article Here).

This Sectoral Determination covers employees who work in merchandising and/or distribution operations, however certain geographic areas and businesses are covered by bargaining council agreements so it is important to familiarize yourself with these in your area. Read more “Minimum Wages for the Wholesale and Retail Sector – 2018”

Forestry-Worker News

Minimum Wages for the Farm Workers and Forestry Sectors

From the 1st of March 2018, the minimum wages for Farm Workers and people employed in the Forestry Sector will be increased, this annual increase is valid for twelve (12) months until the 28th of February 2019 in stark contrast to the increases tabled for the Domestic Workers and Contract Cleaning Sectors earlier this year. It stands to be seen how this extended period of validity will play into the proposed Minimum Wage Bill (Read Our Article Here).

Hourly Rate from 1st of March 2018: R 16.25

Read more “Minimum Wages for the Farm Workers and Forestry Sectors”

Contract-Cleaning News

Contract Cleaning Sector Minimum Wages 2018

From the 1st of January 2018, the minimum wages for workers in the Contract Cleaning Sector will be increased, this increase is only valid until the 30th of November 2018, likely in order to allow the Minimum Wage Act to replace the wage table. Additionally it must be noted that Area B will receive two increases, one on the 1st of January and the second on the 28th of February 2018 in order to comply with collective agreements applicable to that region.

Given the current proliferation of trade unions within the Contract Cleaning Sector it is also likely that individual business may be required, by virtue of collective agreements of their clients being extended, to pay higher minimum wages than those listed in the Sectoral Determination 1.

Read more “Contract Cleaning Sector Minimum Wages 2018”

Court News

HR City opposes Labour Legislation Law Amendments

Again HR City has elected to voice our concern over proposed amendments to labour legislation, including the implementation of the proposed Minimum Wage Bill (Read our Article Here).

Similarly to our actions in 2012 when HR City sought to intervene in what it viewed as dangerous and unfair changes to labour legislation (Read our Article Here) government has again sought to further restrict the rights of employers, even during an economic downturn which, in no small part is due to excessive over-regulation of the labour market.  Read more “HR City opposes Labour Legislation Law Amendments”

CoalStrike News

Strike Looming in the Coal Sector

Over the past few months employers and employees in the coal sector have been negotiating wage increases in the Coal Sector. Employees, represented by the NUM, Solidarity, UASA and NUMSA have reached a deadlock with the represented employers, Exxaro Coal, Anglo American Coal, Glencore, Koornfontein, Kangra, Delmas Coal and Msobo Coal which may well result in a strike occurring across the entire sector.

Says Mr Peter Bailey, NUM Chief Negotiator in the Coal Sector in a press statement: “The Chamber of Mines members are pleading poverty when it comes to black workers yet white managers and executives have the luxury of being overcompensated.” Read more “Strike Looming in the Coal Sector”