Legal consequences of drug related offences

Any person found guilty of any drug or alcohol related offences will have a criminal record in South Africa and everywhere else in the world. This will impede a number of areas of your life, in the future. This may range from limiting future travel options, to employment options, to name but a few.

The legal consequence of being arrested and sentenced in a drug related offence will haunt you for the rest of your life.

Section 5 of the Misuse of Drugs Act 1971 and the Drugs and Drug Trafficking Act No. 140 of 1992 are the primary legal guidelines when it comes to dealing with the use, misuse, abuse and trading in what is considered harmful drugs in South Africa.

 Possession of a controlled substance

 It is unlawful to have a controlled (See: Schedule of Drugs elsewhere) drug in your possession unless you have authorization in the form of a license or if you did not know the Drug was a controlled drug. Three elements constitute the offence of possession:

  • The Drug is in the possession or under the control of the individual. The Drug must be in an individual’s physical custody or under their control. This can include being at the property of someone who is not present but has control over that property.
  • The individual knows the drug "exists". The individual must know of the existence of the Drug and they must know that the Drug is a controlled drug.
  • The Drug is a controlled drug. The Drug must in fact be a controlled drug. Therefore, if the individual thought they were in possession of cannabis but they were in fact in possession of tea leaves, no offence has been committed. (If the defendant can prove that, as soon as was practicable, they intended to destroy the Drug or give it to someone who had legal authority to possess it, it may be considered as a defence against a possession charge).

 What is Joint Possession

 Depending on the circumstances of a case, an allegation of joint possession may be made. For example, a group of people are apprehended when travelling in a car with a stash of drugs. If it can be proven that they were all in control of the drugs, they might all be guilty of joint possession of the same batch.

 Penalties Available for Possession

The severity of the penalty applied in relation to drugs offences will depend on the individual circumstances of the case.
Please note these are the maximum sentences only and in most cases will not be reflective of the sentence given.

Simple Possession

Class A – 7 years’ imprisonment or a fine or both.
Class B – 5 years’ imprisonment or a fine or both
Class C – 2 years’ imprisonment or a fine or both