drug offences

SELECTED STATUTORY OFFENCES

CRIMES AGAINST PUBLIC WELFARE

DRUG OFFENCES

Legislation may involve either:

i) absolute prohibition on dealing or possessing; or

ii) partial prohibition (through a licensing system) upon sale and consumption

Drugs & Drug Trafficking Act 140 of 1992:

• “to provide for the prohibition of the use or possession of, or the dealing in, drugs.”

The Act creates 2 NB offences:

1. the use or possession of drugs (s.4) &

2. dealing in drugs (s.5).

Three Categories of Drugs:

1. dependence-producing substances

2. dangerous dependence-producing substances

3. undesirable dependence-producing substances.

UNLAWFUL POSSESSION OR USE

• Section 4 of the Act:

No person shall use or have in his possession -

(a) any dependence-producing substance; or

(b) any dangerous dependence-producing substance or any undesirable dependence-producing substance,

unless –

1. Possession or UseUse = any use, incl: smoking, inhaling, injecting or

ingesting

Possession: In terms of the Act:• “possess”, includes to keep or store the drug, or to

have it in custody or under control or supervision;

S.20 = Presumption relating to possession of drugs:• 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.

• S v Majola 1975 (2) SA 727 (A) • Found unconstitutional – S v Mello & Another 1999 (2)

SACR 255 (CC).

2. Drug

3. Unlawfulness

See s.4 of the Act:• patient who has acquired or bought substance

from doctor or pharmacist, or veterinarian for medicinal purposes;

• Director-General: Welfare - in accordance with reqs of the Medicines Act;

• permit to buy, sell, export or otherwise handle the substance (Medicines & related Substances Act 101 of 1965);

• employee of someone who has necessary permission;

• otherwise the lawful right to handle the substance.

4. Intention

See:

• Prince v President, Cape Law Society, and Others 2002 SA 794 (CC)

Dealt with the Constitutional ramifications of s 4 (b) of Act 140 of 1992 in light of the right to freedom of religion.

DEALING IN DRUGS

Section 5 of the Act:

No person shall deal in -

(a) any dependence-producing substance; or

(b) any dangerous dependence-producing substance or any undesirable dependence-producing substance,

unless –

1. Dealing In

• In terms of the Act:

“deal in”, in relation to a drug, includes performing any act in connection with the transshipment, importation, cultivation, collection, manufacture, supply, prescription, administration, sale, transmission or exportation of the drug.

• S v Solomon 1986 (3) SA 705 (A)

• “sell”, in relation to a drug, includes to offer, advertise, possess or expose the drug for sale, to dispose of it, whether for consideration or otherwise, or to exchange it.

• Section 21(1) of the Act: Presumptions relating to dealing in drugs.

Most held to be unconstitutional.

• S v Tshali 2007 (2) SACR 23 (C)

1. Dealing In

2. Drug

3. Unlawfulness

• See s.5 of the Act

4. Intention

• Muholi v State [2006] SCA 44 (RSA)