Legal framework, types of drugs and defence strategies
In South Africa, drug possession and trafficking are serious criminal offences that are governed by legislation and regulations. Understanding the legal framework dealing with these crimes, the types of drugs involved and the available defences is important for anyone facing charges or wanting to understand the legal implications.
The Drugs and Drug Trafficking Act of 1992 is the primary legislation governing drug possession and trafficking in South Africa. The Act outlines the offences related to the possession, manufacturing, distribution and trafficking of illegal substances. The Medicines and Related Substances Act further categorises drugs into different schedules based on their potential for abuse, medical use and harmful consequences.
Types of drugs
Cannabis – despite recent legislative changes in South Africa, the possession and distribution of cannabis remain regulated and subject to specific legal requirements.
Depressants – this category includes substances like benzodiazepines and barbiturates depressing the central nervous system and are often abused for their sedative effects.
Narcotics – these include substances such as heroin, cocaine and methamphetamine, which have a high potential for abuse and addiction.
Stimulants – drugs like MDMA (ecstasy) and amphetamines fall into this category. They have stimulating effects on the central nervous system.
Hallucinogens – substances such as LSD and psilocybin mushrooms induce hallucinations and alter perception and cognition.
Possession and dealing
If you are found in possession of drugs listed under the Act or dealing in drugs, the implications involve either a fine, imprisonment or both. If you are in possession of or caught dealing a higher scheduled drug such as heroin, the sentence increases significantly. The severity of the penalty will be determined by several factors, such as whether it is a first offence.
Penalties
Any person who is convicted of an offence under this Act shall be liable to:
- In the case of an offence referred to in section 16 of the Act, a fine or imprisonment for a period not exceeding 12 months, or both fine and imprisonment
- In the case of an offence referred to in section 13 (a) or (c) of the Act, such fine as the court deems fit to impose or imprisonment for a period not exceeding five years, or both fine and imprisonment
- In the case of an offence referred to in section 13 (e) of the Act, such fine as the court deems fit to impose or imprisonment for a period not exceeding 10 years, or both fine and imprisonment
- In the case of an offence referred to in section 13 (b) or (d), 14 or 15 of the Act, such fine as the court deems fit to impose or imprisonment for a period not exceeding 15 years, or both fine and imprisonment
- In the case of an offence referred to in section 13 (f) of the Act, imprisonment for a period not exceeding 25 years, or both imprisonment and any fine the court deems fit to impose
Defences
Depending on the circumstances, when facing drug possession or trafficking charges in South Africa, several defences may be available. These defences include:
- Unlawful search and seizure – if law enforcement officials obtained evidence through an unlawful search or seizure, it may be inadmissible in court, providing grounds for dismissal of charges
- Medical necessity – in specific cases where the possession of a controlled substance is justified for medical purposes, the accused may argue medical necessity as a defence
- Entrapment – the defence of entrapment may apply if law enforcement officers induce or coerce an individual into committing a drug-related offence they would not have otherwise committed
Every case is unique and the viability of these defences depends on the specific facts and circumstances surrounding the alleged offences.
Medicines and Related Substances Act
The South African Medicines and Related Substances Act classifies drugs into different schedules based on their potential for abuse, medicinal value, and the need for regulation. The schedules range from Schedule 0 to Schedule 8, with Schedule 0 being the least restricted and Schedule 8 the most restricted. The criteria for each schedule are as follows, along with examples:
Schedule 0
Criteria:
- Low potential for abuse
- Available without a prescription
- Used for minor ailments
Example:
- Aspirin
Schedule 1
Criteria:
- Low potential for abuse
- Available without a prescription but regulated to ensure safe use
- Used for minor to moderate ailments
Example:
- Paracetamol
Schedule 2
Criteria:
- Low to moderate potential for abuse
- Available without a prescription but regulated to ensure safe use
- Used for moderate ailments
Example:
- Ibuprofen
Schedule 3
Criteria:
- Moderate potential for abuse
- Requires a prescription from a healthcare provider
- Used for more serious conditions
Example:
- Medicines for hypertension and diabetes, codeine above a certain amount
Schedule 4
Criteria:
- Moderate to high potential for abuse
- Requires a prescription from a healthcare provider and monitoring
- Used for chronic conditions
Example:
- Diazepam (Valium)
Schedule 5
Criteria:
- High potential for abuse and dependence
- Requires a prescription from a healthcare provider, and strict regulation and monitoring
- Used for severe conditions
Example:
- Morphine
Schedule 6
Criteria:
- High potential for abuse and severe dependence
- Requires a prescription from a healthcare provider, with stringent control and monitoring
- Used for severe pain and in palliative care
Example:
- Fentanyl
Schedule 7
Criteria:
- Very high potential for abuse and dependence
- Limited medical use, requires a special permit for medical use
- Stringent regulatory controls
Example:
- Methadone
Schedule 8
Criteria:
- Extremely high potential for abuse and dependence
- Requires special permit for medical use
- Strictly controlled and monitored
Example:
- LSD, which is used in very limited medical research settings
These schedules help regulate the availability and use of substances to ensure public safety while allowing access to necessary medications for therapeutic use.
Cannabis for personal use
You may recall that criminalisation of the use of cannabis for personal use was declared unconstitutional and private recreational use became legal in 2018 following the Constitutional Court’s ruling in Minister of Justice vs. Prince. However, while the Drugs and Drug Trafficking Act and the Medicines and Related Substances Control Act were amended to reflect the Constitutional Court judgement, the Cannabis for Private Purposes Act (CPPA) was only signed into law on 29 May, 2024. Previously, cannabis was a Schedule 7 drug in South Africa, and CBD was Schedule 4. The CPPA has formalised the ConCourt decision and provides the legal framework for the personal use of cannabis.
The CPPA defines what is considered “in private” and specifies the quantity classed as private use. While the CPPA does not cover the commercialisation of cannabis, there are indications that it will address this in future. The Act criminalises smoking cannabis in public or selling it and sets limits on how much cannabis individuals may own for private use and cultivation. A person living alone may possess a maximum of 600g of cannabis and two or more adults in the same household may possess 1.2kg. The CPPA also makes provisions for the expungement of criminal records of anyone convicted of minor cannabis possession charges under historic legislation.
Let our law firm help you
Cape Town attorneys SD Law & Associates Inc. are criminal attorneys and bail lawyers. 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