DRUG-RELATED OFFENCES IN SOUTH AFRICA: POSSESSION, DEALING AND THE LEGAL CONSEQUENCES

Drug-related offences remain a serious concern in South Africa and are strictly regulated by legislation. Many individuals are uncertain about what the law actually says regarding the use, possession, or distribution of drugs, particularly in light of recent Constitutional Court decisions involving cannabis.

This article explains the legal framework governing drug offences in South Africa, the difference between possession and dealing, and the potential legal consequences individuals may face.

The Legal Framework

Drug offences in South Africa are primarily regulated by the Drugs and Drug Trafficking Act 140 of 1992 ("the Act”). The Act criminalises the use, possession, manufacture, and dealing in certain substances unless they are lawfully obtained and used for legitimate medical purposes.

The Act works alongside other legislation such as the Medicines and Related Substances Act 101 of 1965, which regulates the lawful manufacture and prescription of controlled substances. South African law controls hundreds of substances, many of which are listed in schedules to the Act. These substances are broadly classified into categories depending on their potential to cause dependency.

What is considered a “Drug”?

In terms of the Act, a drug includes any substance listed in the schedules attached to the Act or any plant (including portion of a plant) from which such substance can be manufactured.

Drugs can generally, be categorised as:

• any dependence–producing substances,

• any dangerous dependence–producing substance, such a cocaine, morphine and opium, or

• any undesirable dependence–producing substances, such as  amphetamines, cannabis (dagga), heroin, mandrax, parahexyl, pyrrolidine, nabilone  phenmetrazine, etc.

Because these substances pose risks to public health and safety, the law strictly regulates their use, possession and distribution.

Possession and use of Drugs

In South Africa it is generally a criminal offence to use or possess a dependence-producing substance unless it has been lawfully obtained for medical purposes.

For example, possession may be lawful if:

• the substance was prescribed by a doctor or dentist, or

• it was dispensed by a pharmacist, or

• it is being used to treat a patient or animal under the care of a medical professional or veterinarian.

However, the concept of possession in law is broader than simply holding a substance in your hand. Under the Act, if a drug is found in the immediate vicinity of a person, the law may presume that the person was in possession of it unless they can prove otherwise. For example, drugs discovered in a person’s home, vehicle, or personal belongings may legally be regarded as being in their possession.

Cannabis and recent Constitutional Court decisions

The legal position regarding cannabis has changed significantly in recent years.

In Minister of Justice and Constitutional Development and Others v Prince; National Director of Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others v Acton and Others [2018] the courts found that the provisions of s.4 (b) of the Drugs and Drug Trafficking Act 140 of 1992 read with Part III of Schedule 2 of that act and the provisions of s.22A(9)(a)(i) of the Medicines and Related Substances Control Act 101 of 1965 were unconstitutional to the extent that they criminalised the private use and possession of cannabis by adults for their own personal consumption in private.

This judgment means that:

• adults may use or possess cannabis in private for personal consumption, and

• such conduct should not lead to criminal prosecution.

However, the judgment did not legalise the sale or commercial distribution of cannabis, and dealing in cannabis remains a criminal offence unless specifically authorised by law.

In Centre for Child Law v Director of Public Prosecutions, Johannesburg (2022), the Constitutional Court further ruled that criminalising the use or possession of cannabis by children was inconsistent with the Constitution.

As a result:

• children may not be arrested, prosecuted, or diverted solely for cannabis possession or use;

• instead, they may be referred to appropriate social or child-protection interventions, such as processes under the Children’s Act 38 of 2005 or substance-abuse treatment programmes.

Where a child was previously convicted of such an offence, the criminal record relating to that conviction may be expunged upon application.

Manufacturing or Supplying Schedule Substances

The Act also prohibits the manufacture or supply of schedule substances where a person knows or reasonably suspects that the substance will be used to produce illegal drugs.

This provision targets activities that support the production of illicit drugs, including the unlawful supply of chemical substances used in drug manufacturing.

Dealing in Drugs

The Act defines “dealing” very broadly. It includes almost any activity connected to the movement or distribution of drugs, such as:

• importing or exporting drugs

• cultivating drug-producing plants

• manufacturing drugs

• supplying, selling or administering drugs

• transmitting or transporting drugs

Even assisting in the movement or storage of drugs can potentially fall within the definition of dealing.

Importantly, the Act also creates certain legal presumptions that may lead to a charge of dealing rather than simple possession. For example, a person may be presumed to have been dealing in drugs if:

• they are found with large quantities of certain substances,

• drugs are found on cultivated land under their control, or

• drugs are discovered in a vehicle, vessel or aircraft under their control.

These presumptions can significantly affect the seriousness of the charges a person faces.

It is a criminal offence to deal in any dependence producing substance, dangerous dependence-producing substances or undesirable dependence producing substances unless you lawfully acquired the substance for medical purposes from a doctor, dentist, veterinarian or pharmacist and administer that substance to a patient or animal under the case or treatment of that doctor, dentist or vet.

Police powers and offences relating to investigations

The Act also creates offences relating to interference with police investigations.

It is a criminal offence to:

• Obstruct any police official in an exercise of search, seizure, intercepting, questioning etc. in terms of the Act.

• Refuse to comply with any requirement or request made by any police official in the exercise of their powers.

• Refuse to answer any question put by a police official in the exercise of their powers.

• Furnish to a police official any false or misleading information.

These provisions are designed to ensure that investigations into drug-related offences can be conducted effectively.

Entrapment (Section 13 (a) of the Act)

The Act specifically criminalises entrapment involving drugs.

This occurs where a person intentionally places drugs in another person’s possession, or in their vehicle or premises, with the intention that the individual be charged with a drug offence.

Such conduct is itself a criminal offence and can lead to prosecution.

Possible penalties and sentencing  

The penalties associated with possessing or dealing in drugs vary in severity  depending on the nature of the substance. There are various factors the court will take into consideration when deciding on an appropriate sentence, including:

• The type of drug involved;

• The statute under which you have been charged;

• The circumstances of the matter and what happened (i.e. the quantity and value of the drugs as well as your intention regarding them);

• Your personal circumstances (i.e. previous conviction of a drug offence)

Courts often impose significant sentences where the offence involves large quantities of drugs or organised criminal activity.

Why Legal Advice Is Important

Anyone facing a drug-related charge should seek legal advice as soon as possible. The outcome of a criminal matter often depends on the specific facts of the case, the applicable legal presumptions, and the ability to properly challenge the evidence presented by the prosecution.

Early legal assistance can ensure that a person’s constitutional rights are protected and that appropriate defences are properly raised.

Conclusion

Drug-related offences in South Africa are governed by strict legislation and can carry serious legal consequences. While the law has evolved in certain areas, particularly regarding the private use of cannabis, many drug-related activities remain criminal offences.

Understanding the legal framework surrounding drug possession, use and dealing is essential for members of the public. Individuals who are arrested or investigated for such offences should seek professional legal advice to fully understand their rights and the legal options available to them.

For further guidance on drug-related offences or criminal law matters, contact Ulrich Roux & Associates for professional legal assistance.

By John Macdonald

(Candidate Attorney)

26 March 2026

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