Ignorance of the law is no defence if you are caught with drugs
With cannabidiol, or CBD, a compound found in marijuana, cropping up in everything from tea to hand cream, it’s tempting to conclude that cannabis is now completely legal. Can you smoke a joint in public? Can you buy or sell cannabis? What about growing it? You may even be confused about the legal status of other drugs. With such rapid developments in legislation, it’s important to understand the legal consequences of using or dealing in different substances. Let’s look at the classification of drugs in South Africa and the associated drug-related offences.
What is considered a drug?
In terms of the Drugs and Drug Trafficking Act 1992 (‘the Act’), a drug means any substance listed in the schedules attached to the Act or any plant (including portion of a plant) from which such a substance can be manufactured. The list very lengthy, but the drugs can generally be categorised as:
- Dependence-producing substances
- Dangerous dependence-producing substances, such as cocaine, morphine and opium
- Undesirable dependence-producing substances, such as amphetamines, cannabis, heroin, mandrax, etc.
Possible offences under the Act
Police officials (section 16 of the Act)
It is a criminal offence to:
- Obstruct any police official in an exercise of search, seizure, intercepting, questioning, etc. in terms of the Act
- Refuse to comply with any requirement or request made by any police official in the exercise of their powers
- Refuse to answer any question put by a police official in the exercise of their powers
- Furnish to a police official any false or misleading information
Entrapment (section 13(a) of the Act)
It is a criminal offence to place any drug in the possession of any other person, at their premises, or in their vehicle, vessel or aircraft with the intention that they are charged with an offence.
Use and possession of drugs
It is a criminal offence to use or to have in your possession any dependence-producing substance, any dangerous dependence-producing substance, or any undesirable dependence-producing substance, unless you are a patient and you lawfully acquired the substance from a doctor, dentist or pharmacist. You must use that substance for medicinal purposes under the care or treatment of the doctor or dentist. Possession is also legal if you lawfully acquired the substance for medicinal purposes from a doctor, dentist, pharmacist or veterinarian in order to treat a patient or animal under the care of that doctor, vet or dentist.
“Possession” does not just mean having the drugs on your person. The Act states:
If in the prosecution of any person for an offence under this Act it is proved that any drug was found in the immediate vicinity of the accused, it shall be presumed, until the contrary is proved, that the accused was found in possession of such drug.
Substances in your home or car are deemed to be in your possession.
Dealing in drugs
The Act defines dealing as including any act in connection with transhipment, importation, cultivation, collection, manufacture, supply, prescription, administration, sale, transmission or exportation of a drug. It is a criminal offence to deal in any dependence-producing substance, dangerous dependence-producing substances, or undesirable dependence-producing substances unless you lawfully acquired the substance for medicinal purposes from a doctor, dentist, veterinarian or pharmacist and administer that substance to a patient or animal under the care or treatment of that doctor, dentist or vet.
Drug sentences and penalties
The penalties associated with possessing or dealing in drugs vary in severity depending on the nature of the substance. There are various factors the court will take into consideration when deciding on an appropriate sentence, including:
- The statute under which you have been charged
- The circumstances of the matter and what happened (i.e., the quantity and value of the drugs as well as your intention regarding them)
- Your personal circumstances (i.e., previous conviction of a drug offence)
The sentence you will receive if you are found guilty will depend on the skill of your lawyer and their ability to represent you in a way that reduces the impact the sentencing factors may have on you.
Let our law firm help you
Cape Town attorneys SD Law & Associates Inc. are criminal attorneys and bail lawyers, with offices in Johannesburg and Durban. If you have been charged with a drugs-related offence, or have any questions about drug laws or any other aspect of criminal law, call Simon on 086 099 5146 or email simon@sdlaw.co.za