It is a serious offence to be found in possession of illegal drugs in South Africa. If you or your family member was arrested for being in possession of illegal drugs, then this article will help you to understand the procedure that will ensue from the moment of an arrest until the conviction and sentencing stages.
There are inevitable consequences that will ensue should the court find you guilty of the offence. Some of the consequences that will ensue after the court of law finds you guilty are that you might spend time in prison, and eventually end up with a criminal record.
However, there are helpful systems such as the Diversion Program which may assist an arrested person to avoid the processes of our criminal justice system. If you are a first time offender and have a clear intention to embark on programs that will assist you in reconstructing your life, then you might need an attorney who is going to assist you or your family member.
The Drugs and Drug Trafficking Act 140 of 1992
South Africa is one of the countries in the world that continue to be hit by a plague of drugs problem. This problem continue to rise despite the fact that the Drugs and Drug Trafficking Act 140 of 1992 (DDTA), among other legislations, has criminalised both the possession and dealing in illegal drugs. However, for the sake of this article, we are only going to focus on the possession of illegal drugs as an offence in South Africa.
While the South African law has decriminalised the possession of cannabis for personal use, it is still a serious offence in South Africa to possess illegal drugs like cocaine and mandrax. Section 20 of the DDTA defines the “Possession of Drugs” as follows:
“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”.
The state, however, still has to prove its case beyond a reasonable doubt that the drugs which were found belong to the accused person.
The Penalty for the Possession of Illegal Drugs
The court will only proceed with finding the accused guilty of the offence and sentencing the accused once the state has proved its case beyond a reasonable doubt. The presiding officer will be guided by the provisions of the Criminal Law Amendment Act 105 of 1997 in meting out a punishment that is fair and just according to the law.
The type of punishment will also depends on factors such as whether the accused is a first time offender and the category of drugs which were found. Section 4 of the DDTA makes a distinction for possession according to the categories of drugs, namely, dependence – producing drugs and dangerous dependence – producing drugs.
Dependence – Producing Drugs
Dependence – producing drugs are classed in Part 1 of Schedule 2 of the DDTA. If you are found in possession of dependence – producing drugs, you may be subjected to a fine, set by the court, or you could face imprisonment of up to five years or both.
Dangerous Dependence – Producing Drugs
Dangerous dependence – producing Drugs such as cocaine are classed in Part 2 of Schedule 2 of the DDTA. If you are found in possession of dangerous dependence – producing drugs, a convicted person could face a custodial sentence of up to 15 years.
The Effects of Imprisonment
The term of imprisonment to be imposed by the courts remains the sole discretion of the Presiding Officer. Factors such as the type of crime committed and the manner with which it was carried out play a major role in the sentencing proceedings.
The sentencing proceedings which follow a successful conviction for the possession of illegal drugs will be guided by factors such as the type of drugs found in the possession of the accused person, the personal circumstances of the accused and whether the accused is a first time offender.
No person in society is immune to making mistakes. Making mistakes is an inherent characteristics that distinguishes us from other animals in the animal kingdom, in that we are often guided by our intuitions in making our choices. But we know that sometimes our choices can invite troubles in our lives. The same can be said by first time drugs offenders or people with severe drug problems who might need helpful interventions to restore their lives.
Prisons are often regarded by the majority of people as homes to dangerous people in Society. These are people who are more likely to commit other crimes while they are serving their term of imprisonment.
It is an irrefutable fact that a direct committal to prison creates stigmas for transgressors of the law. Incorporating first time offenders with habitual criminals will not benefit them and the society at large. A successful conviction and sentencing will automatically bring a criminal record on the offender.
Having a Criminal Record
A criminal record can bring numerous socio and economic challenges on convicted persons. They will often face numerous challenges, namely, they may struggle to travel to other countries to pursue study or work opportunities, they may struggle to find jobs in certain sectors in South Africa, and lastly, the criminal record will serve as an aggravating factor in future should they be convicted for the same or different offence.
Diversion
We mentioned above that no person is immune to making mistakes. However, some mistakes can result in a law abiding citizen being branded a criminal. It therefore suffices to say that first time offenders should not always be subjected to the harsh processes of our criminal justice system.
Diversion can remedy the stigma and possible incarceration that may be brought by a conviction. Incarceration may expose a law abiding citizen to the inhuman and criminal lifestyle that are predominantly part of our prisons in South Africa.
The interests of justice often demand that certain people in our society be given a second chance to redeem their mistakes and to show that they are worthy of being integrated into our society. An offender who completes a diversion program will not be convicted and will not have a criminal record. The Diversion Programme is best suited for first time offenders who were arrested for offences such as theft, shoplifting, assault and but not limited to the possession of illegal drugs.
Mokhabela and Mposula Attorneys will assist you in handling drug-related offences. If you have been arrested for being in possession of illegal drugs or feel that you have been unfairly or unlawfully treated, contact Jonas Obakeng Mokhabela on 012 006 5274 / 076 9557 286 or email jonasm@mmplaw.co.za.