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Drugs and Drug Trafficking

Drugs are one of society’s most threatening menaces, and one of Government’s biggest challenges.

A ‘drug’, for the purposes of the Drugs and Drug Trafficking Act 1992 means any substance listed in schedules attached to the Act; or, any plant (including portion of a plant) from which such a substance can be manufactured.

The list includes many drugs not commonly known. These are all referred to as ‘dependence-producing substances’. Some, such as cocaine, morphine and opium (these are only examples – the list is lengthy) are referred to as ‘dangerous dependence-producing substances’. There are also ‘undesirable dependence-producing substances’ – commonly known drugs such as amphetamine, cannabis, heroin, mandrax, etc, and many more. Different considerations apply to them.

The Drugs and Drug Trafficking Act 1992 is referred to below as the ‘Drugs Act’.

NOTE: Sections 4(b) and 5(b) referred to below have been declared unconstitutional by the Constitutional Court in the much-publicised Prince case.1 The Act has yet to be amended in consequence.

A. Police officials

  1. It is a criminal offence to:2
    • obstruct any police official in an exercise of search, seizure, intercepting, questioning, etc. in terms of the Drugs Act;
    • refuse to comply with any requirement or request made by any police official in the exercise of his powers;
    • refuse to answer any question put by a police official in the exercise of his powers;
    • furnish to a police official any information which is false or misleading.

B. Entrapment

Everyone has seen a Hollywood movie where the cop plants a bag of white powder in someone’s car and then arrests him for possession of drugs.

Well, only in the movies.

  1. It is a criminal offence to place any drug in the possession of any other person, or at his premises, or in his vehicle, vessel or aircraft with the intention that he be charged with an offence.3

C. Manufacturing

The first schedule to the Drugs Act lists substances which can be used for making drugs.

  1. It is a criminal offence to manufacture any of the substances listed in that schedule.4

  2. The same if you supply any of the substances to anyone, knowing (or even suspecting) that it is to be used in, or for the manufacture of, any drug.5

D. Use and possession of drugs

  1. It is a criminal offence to use, or to have in your possession any dependence-producing substance.6

  2. The same7 if you use, or have in your possession any dangerous dependence-producing substance, or any undesirable dependence-producing substance, unless:8

    • you are a patient and you lawfully (i.e. with proper prescription, etc.) acquired the substance from a doctor, dentist or pharmacist, and you use that substance for medicinal purposes under the care or treatment of the doctor or dentist; or
    • you lawfully acquired the substance for medicinal purposes from a doctor, dentist, pharmacist or animal vet in order to treat a patient or animal under the care of that doctor, vet or dentist.

E. Dealing in Drugs

‘Dealing’ is a wide concept. It includes any act in connection with transhipment, importation, cultivation, collection, manufacture, supply, prescription, administration, sale, transmission or exportation of a drug.

  1. It is a criminal offence to ‘deal’ in any dependence-producing substance.9

  2. With regard to dangerous dependence-producing substances or any undesirable dependence-producing substances, it is also a criminal offence10 to ‘deal in’ them: except, if you lawfully acquired the substance for medicinal purposes from a doctor, dentist, animal vet or pharmacist and administer that substance to a patient or animal under the care or treatment of that doctor, dentist or animal vet.11

F. Duty to report

  1. If the owner, occupier, manager, or supervisor of any place of entertainment has reason to suspect that any person uses, possesses or deals in any drug he must report it as soon as possible to a police official on duty at the place of entertainment or at the nearest police station. It is a criminal offence if he fails to do so.12

  2. If any stockbroker (or the like kind of trader) has reason to suspect that any property he acquires in the course of his business, represents the proceeds of crime, he must (regardless of any client confidentiality) report his suspicion to the South African Narcotics Bureau as soon as possible.13

  3. He must also, on request, furnish such information as he may have available regarding the person from whom the property was acquired.14

  4. It is a criminal offence not to comply with these duties.

  1. See http://www.saflii.org/za/cases/ZACC/2018/30.html. ↩

  2. Section 16. ↩

  3. Section 13(a). ↩

  4. Section 13(b) read with section 3. ↩

  5. Section 13(b) read with section 3. ↩

  6. Section 13(c) read with section 4(a). ↩

  7. This prohibition does not apply to persons referenced by the Medicines and Related Substances Control Act 1965 – manufacturers, wholesalers, importers, doctors, pharmacists, their employees, etc. in their professional capacities. ↩

  8. Section 13(d) read with section 4(b). ↩

  9. Section 13(e) read with section 5(a). ↩

  10. This prohibition also does not apply to persons referenced by the Medicines and Related Substances Control Act 1965. ↩

  11. Section 13(f) read with section 5(b). ↩

  12. Section 15(1) read with section 10(1). ↩

  13. Section 15(1) read with section 10(3)(i). ↩

  14. Section 15(1) read with section 10(3)(ii). ↩

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