Substance Abuse Law

• These notes reference relevant acts, Professor Stevens' lectures, and Snyman's Criminal Law (7th ed.) by SV Hoctor.

Substance Abuse Offenses

• The Drugs and Drug Trafficking Act 140 of 1992 addresses substance abuse offenses.

Definitions

Deal In

• Includes any act in connection with transshipment, importation, cultivation, collection, manufacture, supply, prescription, administration, sale, transmission, or exportation of a drug.

Possess

• Includes keeping, storing, having custody, control, or supervision of a drug.

Possession or Use of Drugs (Sec 4)

• Law differentiates between two forms of possession

Possessio Civilis

• Judicial or legal possession
• Animus domino: intention to exercise control over the article as an owner
• Narrow form of possession.

Possessio Naturalis

• Natural possession
• Exercising control over the article without intending to possess as owner.
• Knowing someone else is the owner while exercising control
• Wider form of possession.

Corpus Element

• The difference between possessio civilis and naturalis is not found in the physical handling of the article.

Animus Element

• Found in the intention with which control is exercised.

Animus Tenendi

• Intention to keep the article.

Animus Detentionis

• Intention to exercise control over it (the article).
• These expressions are essentially synonymous.
• Animus is always required to establish possession and is the minimum requirement for proof of possession
• Possessio cannot exist without the existence of animus
• Requirements to meet animus:
  • Knowledge of the existence of the article.
  • Awareness of exercising control over it.

Sec 4

• "No person shall use or have in possession:
  • Any dependence-producing substance.
  • Any dangerous or undesirable dependence-producing substance.

Unless:

• There are statutory grounds for justification, such as being a pharmacist or acquiring the substance from a medical practitioner.

Act states: Unless...

• Patient acquired/bought substance from medical practitioner, dentist, or practitioner (acting professionally and in accordance with the Medicines Act) or from a pharmacist (via oral instruction or prescription)
• Substance used for medicinal purposes under care/treatment.
• Acquired/bought substance for medicinal purposes from medical practitioner, veterinarian, dentist, or practitioner (acting professionally and in accordance with Medicines Act) or from pharmacist (via oral instruction/prescription) or from veterinary assistant/nurse (via prescription).
• Intent to administer substance to patient/animal under care/treatment of medical practitioner, veterinarian, dentist, or practitioner.
• Director-General: National Health and Population Development acquired/bought substance in accordance with Medicines Act or regulation.
• A patient, medical practitioner, veterinarian, dentist, practitioner, nurse, midwife, nursing assistant, pharmacist, veterinary assistant, veterinary nurse, manufacturer of, or wholesale dealer in, pharmaceutical products, importer/exporter who acquired, bought, imported, cultivated, collected, manufactured, used, possessed, or intends to administer, supply, sell, transmit, or export substance in accordance with the Act.
• Employee of pharmacist, manufacturer, or wholesale dealer who acquired, bought, imported, cultivated, collected, manufactured, used, possessed, or intends to supply, sell, transmit, or export substance in the course of employment and in accordance with the Act.
• The substance was otherwise lawfully obtained.
• Any person who contravenes sec4(a) or (b) is guilty of an offense > sec17 lays down penalties.

Sec 13(a)

• "Any person who places any drug in the possession, or in or on the premises, vehicle, vessel, or aircraft, of any other person with the intent that the latter person be charged with an offence under this Act"
• Punishable by a fine or imprisonment not exceeding five years, or both, as court deems fit.

Possession - Ordinary vs Extended Meaning

Ordinary Possession

• Requires both physical and mental awareness.

Extended Definition

• Keeps, stores, custody or control
• Sec 1 defines this.
• If X does not exercise control over the drug to keep it for themselves, but merely to look after it temporarily for someone else - the answer lays in the extended meaning of the word "possession" in sec1.
• Animus element is wider: X only needs to exercise physical control.
• It is not required that X exercises control over the thing with the intention of keeping or retaining it as an owner - it's sufficient if X exercises control over it for the benefit of somebody else
• This type of possession is called possessio naturalis
• Under this extended definition of “possession" drugs may be possessed by more than one person simultaneously, possessing it in the narrow sense of the word (possessio civilis) and the other possessing it in the extended meaning of the word (possessio naturalis).

Four Requirements for Crime

A Drug

• Act distinguishes between dependence-producing, dangerous dependence-producing, and undesirable dependence-producing substances.

Unlawfulness

• General grounds of justification from criminal law, statutory grounds listed in sec 4.
• Section 4 explicitly mentions grounds of justification.

Intention

• Requires fault-culpability as culpability in the form of intention.
• Punishment for dependence-producing substance: fine or imprisonment not exceeding five years, or both.
• Punishment for dangerous/undesirable dependence-producing substance: fine or imprisonment not exceeding 15 years.

Cases on Possession or Use of Drugs

Sv Skosana 1973 (1) SA 322 (0)

• Before Prince decision.
• About possession of cannabis.
• Police found drugs in a guy's possession and his wife was found with them (seemed unaware of control).
• Wife argued she was in custody but not in control.
• Focuses on the second element of possession: X must know what she has in her control and that she is exercising control over it.
• The court said she is still guilty even if she exercises control on his behalf = focus on the extended definition.
• Extended definition: kept, stored under custody or control.

S v Nell 1998 1 SASV 431 (NK)

• Not focused on in class.

Prince v President of the Law Society of the Cape of Good Hope 2002 (3) BCLR 231

• Prohibition of possession of dagga, Prince did not pass the fit and proper test due to recreational dagga use.
• Rastafarian member.
• 16 years later, decision reversed. (Dagga regulation is no longer criminalized and Prince was allowed to proceed having passed the fit and proper test)
• The Drugs and Drug Trafficking Act 140 of 1992 – hereinafter called "the Act" creates the most important offences relating to drugs .
• One purpose of this Act is to provide for the prohibition of the use or possession of or dealing in drugs
• Court ordered a reading-in of words ("deal in") into the existing definition.
• Defense in private dagga use was instituted by Minister of Justice and Constitutional Development in v Prince
• Aspects of offenses were declared unconstitutional by the Constitutional Court based on unjustifiable limitation of the right to privacy regarding cannabis > Minister of Justice and Constitutional Development v Prince 2019 1 SACR 14 (CC).
• The right to privacy is set out in sec14 of the Constitution.
• Law and freedom constantly changes.

Decriminalization of Possession of Dagga

Minister of Justice and Constitutional Development and Others v Prince and Others 2019 (1) SACR 14 (CC)

• Possession, use, or cultivation of dagga (cannabis) by adults is no longer a crime.
• Court clarified: Children - possessing or using or cultivating dagga is no longer a crime.
• In LM 2020 2 SACR 509 (GJ), sec5(4)(b) was found inconsistent with Constitution and invalid to the extent that it had criminalized the use/possession of cannabis by children, and no child could be arrested/prosecuted for contravening the provision pending the completion of the law reform process.

Dealing in Drugs, Sec 5

• This is the second most important crime created in the Act.
• A more serious crime than use/possession with heavier sentences due to the fact if there were no dealers there would be no drugs to be used/possessed.
• Sec 5: "No person shall deal in:
  • Any dependence-producing substance.
  • Any dangerous or undesirable dependence-producing substance.
• Unless...
• (for background purposes, these are the statutory exceptions)
  • acquired/bought substance for medicinal purposes from medical practitioner, veterinarian, dentist or practitioner (acting professionally in accordance with the Medicines Act) or from pharmacist (via oral instruction/prescription) or from veterinary assistant/nurse (via prescription).
  • administration of substance to a patient or animal under the care or treatment of the said medical practitioner. veterinarian, dentist or practitioner;
  • Director-General: National Health and Population Development who acquires, buys or sells any such substance in accordance with the requirements of the Medicines Act or any regulation made thereunder;
  • A medical practitioner, veterinarian, dentist, practitioner, nurse, midwife, nursing assistant, pharmacist, veterinary assistant, veterinary nurse, manufacturer of, or wholesale dealer in, pharmaceutical products, importer or exporter, or any other person contemplated in the Medicines Act or any regulation made thereunder, etc.
  • An employee of a pharmacist, manufacturer of, or wholesale dealer in, pharmaceutical products, importer or exporter who acquires, buys, tranships, imports, cultivates, collects, manufactures, supplies, sells, transmits or exports any such substance etc.

Sec 13: Any person who contravenes sec 5(a) or (b) commits an offence.

Sec 17: Dealing in dependence-producing substance: fine or imprisonment not exceeding 10 years or both.

• Dealing in dangerous/undesirable dependence-producing substance: fine/imprisonment not exceeding 25 years or both as court deems fit.

Elements of the Offence

The Act, that is, Dealing In

"Dealing" - Actual Dealing vs Presumed Dealing

Sec 1: Actual Dealing

• Aware it is a drug & intentional fault & no grounds of justification.
• Collecting; importing; supplying; transshipping; administering; exporting; cultivating; selling; manufacturing; transmitting; prescribing.
• Conventional meaning of "dealing in” is to buy and sell, but also the wider meaning of “doing business” or “performing a transactions ofa commercial sense
• The expression “deal in” in relation to a drug defined in Section 1 includes "any act in connection with the transshipment, importation, cultivation other than the cultivation of cannabis by an adult in a private place for his or her personal consumption in private, collection, manufacture, supply, prescription, administration, sale, transmission or exportation of the drug".

Presumed Dealing

• Sec 2: presumptions unconstitutional
• Declared unconstitutional as goes against presumption of innocent

2. A Drug

• Offense committed if "dealt in" is either a dependence-producing, dangerous, or undesirable dependence-producing substance, as defined in the Act.

3. Unlawfulness and

• UNLAWFULNESS-note statutory grounds of justification.
  • (When possession of the drug is allowed due to legislation/permission).
• According to criminal liability principles, "dealing in" must be unlawful.
• Sec 5 of the Act explicitly mentions grounds of justification.
• Culpability in the form of intention is an element of this offence.
• X must be aware that the substance is as described in Act, conduct amounts to "dealing in," and conduct is unlawful.
• The punishment for dealing in a dependence producing substance is any fine the court may deem fit to impose or imprisonment for a period not exceeding 10 years, or both such fine and such imprisonment.
• The punishment for dealing in either a dangerous or an undesirable dependence-producing drug (which includes dagga) is imprisonment for a period not exceeding 25 years, or both such imprisonment and such fine as the court may deem fit to impose.

Sexual Offenses Against Children

Criminal Law (Sexual and Related Matters) Amendment Act 32 of 2007

• Specifically: Chapter 3, Sections 15-22.
• Progressive aspect of Act: sexual offenses against children and mentally disabled citizens.
• Caim: aim to cater for the vulnerable group of society

Preamble

• Sets out the aim of the Act.

Definition of "Child Pornography"

• (Quite a wide definition and not a closed list)
• Do not need to know off by heart.

Definition of 'Sexual Act'

• Means an act of sexual penetration or sexual violation.
• Sexual penetration includes any act which causes penetration to any extent whatsoever by:
  • Genital organs of one person into another person's genital organs, anus, or mouth.
  • Any other part of the body into another person's genital organs or anus.
  • Animal genital organs into a person's mouth.
• 'Sexually penetrates' has a corresponding meaning.

Why is this Definition NB?

• For the crime of rape - Determining if an act of sexual penetration occurred.
• Determines sexual penetration from sexual violation.
• Sexual violation only needs contact.

Sexual Violation

• Includes any act that causes:
  • Direct or indirect contact between the genital organs or anus of one person (or breasts in the case of a female) and any part of the body of another person or an animal-or any object ressembling the organs
  • Mouth of one person and the organs of another person- or the mouth of another person, or other body parts.
  • Mouth of the complainant and the genital organs or anus of an animal.
  • Masturbation of one person by another.
  • Insertion of an object resembling animal/human organs into another person's mouth.
• BUT does NOT include an act of sexual penetration, and 'sexually violates' has a corresponding meaning.

Consent Definition

• Consent by a minor child is no defence.
• Consent means voluntary or uncoerced agreemeny.
• Voluntary or uncoerced submissions to sexual acts as a result of (does not need to be limited to following)
  • Use of force or intimidation.
  • Abuse of power or authority.
  • False pretenses or fraudulent means.
  • Incapability in law.
• Sec15-16 came about because of the decision of Teddy Bear Clinic CC case:
  • Old regime: if both X (age 13) and Y (age 15) commit sexual penetration, both criminally prosecuted despite both consenting.

New Regime

• If an adult commits sexual penetration with a child, only the adult is prosecuted.
• If X commits sexual penetration with a child below 12, they will be guilty of rape because any consent is invalid.
• Criminalises sexual penetration of a child age 12-16 as child is not mature enough to appreciate consequences.

Sec 15: Acts of consensual sexual penetration with certain children (statutory rape)

• "A" who commits sexual penetration with "B" (12+ but under 16) is guilty, despite consent, unless:
  • A is 12+ but under 16 ,
  • A is 16-17 and the age gap is less than 2 years.
• Prosecution of above offence must be authorized in writing by Prosecutions if A was 16-17 with age gap of less than 2 years.
• Public Prosecutions may delegate decision-making.
• Threshold requirement for this offence: requires definition of sexual penetration by X on someone Y who was child.
• Special defense ito Sec. 56: charge can be contended if defending part can prove the child deceived for being the age of 16, and that X reasonably believed.
• Both a subjective and an objective test apply for this defence.
• Above applies also for 15 , except criminal conduct involves sexual violation only (not penetration).
• All points from here (also defence) apply in this offence too.

Sec 16: Consensual Sex Violation Against Children

• A person ("A") commits an act of sexual violation with a child ("B") (12 and up, but under 16) is guilty, despite consent, unless:
  • A is 12-15,
  • A is 16-17 and age gap doesn't exceed 2 years.
• Prosecution with above case must be authorized in writings by Public Prosecutions if A was under 17 and age gap doesn't exceed 2 years.
• Director of Public Prosecutions can delegate power.

Sec 17(1): Sexual Exploitation of Children

• Creates crimes relating to above.
• Broad: Any A person unlawfully and intentionally engaging a child for financial or other compensation to one of them or a additional person ("C") > engaging in the act with a child/ by committing sexual act with B.
• If sexual service offered it is a crime if not fulfilled/still in attempt.
• Similar to section 1: comments on prostitution.
• Reward that relates to sexual act will render exploitation (whether person consents), anyone younger than age of 18. is for this section.
• Can include clothes, expenses, and opportunity they would not experience;

Sec 17(2): Offers Services

Any Person

• Offers a certain child's services to engage for a criminal act.
• Facilitating a certain individual to engage or be available to commit those offences will be found liable.
• Victim doesn't consent, the person is responsible.

Sec 17(3): Allows/Knowingly Permits

• (With/without consent) an activity can be conducted > (eagiven care to parent) has an element to consent that cannot go without legal ramifications; someone occupies can let it be willingly used for activities with/without consent; criminal offence.

Sec 17(4):

• Intentionally receiving rewards > facilitating above actions.

Sec 17(5):

• Knowingly lives on rewards > facilitates above actions.

Sec 17(6):

• (Including judicial individual) > travel arrangements > organises travel > in attempt to/facilitating > promotion of sex tours.
• Sec 17 sections of sexual exploitation are almost a copy and paste on sexual offenses on mentally disabled persons.

Sec 18: Sexual Grooming

• New provision as it used to be difficult to prosecute.

Sec 18(1): A Person ("A") who—

a) manufactures, produces, possesses, distributes, or facilitates the manufacture, production or distribution of an article which is exclusively intended to facilitate the commission of a sexual act with or by a child

• Just production, a crime.

b) manufactures, produces, possesses, distributes or facilitates the manufacture, production or distribution of a publication or film that promotes or is intended to be used in the commission of a sexual act with or by "B"

c) supplies, exposes or displays to a third person ("C")—

• An article which is intended to be used in the performance of a sexual act.
• Child pornography or pornography.
• A publication or film - with the intention to encourage, enable, instruct or persuade C to perform a sexual act with B

d) arranges or facilitates a meeting or communication between C and B by any means from, to or in any part of the world, with the intention that C will perform a sexual act with B

• This can occur through even simple communication > this facilitation can happen though simple communication (social media).
• The facilitating > commission will be guilty of promoting sexual grooming of a child.

Commonalities Sec. 18(1)

• Requesting, influencing, inviting, persuading, encouraging or enticing a child to indulge in sexual acts or to diminish his or her resistance.
• Statutory Interpreatation: no consent given > cannot be an offence since the legislation is silent.

Sec 18(2): Deals With the Actual Sexual Grooming of a Child

• Child: any person below the age of 18.
• A person ("A") who— (a) supplies, exposes or displays to a child ('B')
  • A article that facilitates "sexual acts",
  • Exposes them to images or descriptions,
  • Publication of films,
• (b) and makes a commital either way which will still indicate to diminish any presence of not willing.
  • Commital to engage,
  • Watch with committal,
  • Exposure to film,
• (c) arranges or facilitates the meeting of those engaging

Sec 18(2): Caters for Circumstances Where X Grooms Child With Intention to Perform Sexual Act

The Problematic Aspect of Sec 18

Difficult for Prosecution to Prove

• Person will try to educational context (with children age 12-18 on matters relation to sexual acitivity) > will be able to distinguish easily and sexual motive.
• Difficult for state since invention by prosecution to perform a certain.

S v RC: 2016 SACR 34 (KZP)

• Accused had multifacted offenses but only charged with some;

Facts

• X = Teacher : student attends class as private time (extra lessons); extra lessons, teacher discusses sexual acts.
• State alleged with 18 > court held and interpreted 8 > the accused must persuaded not reducing > clear for actions to fall into and held must be intent reduced, conviction upheld;
• There is always a long period > directed manipulate the child's psyche;
• Invention must relate to all to what action occurred;
• Must has intention reducing unwilling act, found liable for this one.

Sec 19: Displaying Pornography to Children

• Child cannot consent.
• Refer back to pornography definitions
• Simulation of illegal conduct is liable

Sec 19: a Person (A) is to: unlaw/Intent Expos with/without Consent

• "Sexual presentation is illegal"
• Court said child "offence is not valid"

Cases that Had Dealt With This Element

• S v. Kleinhans SACR 575.

Sec 20: Using Children to Benefit - Pormography

• Individual with (without consent of not) of "C" will >creating to what is on, assistance to creating, any part/or media of the above > guilt for it or not.

Sec 20(2)

• Any individual whom in fact has Knowledge to benefit, then will be liable. linked to 17 (services).

Kleinhans - Noted From The Sec That He Was Involved With the Charge (Porn) And This Found Him Liable

• If he sells from or makes, will be accountable for those charges.
• Doe not make for provision who benefit with sexual exploitation.

Sec 21 - Compelling Witlessness > Sel-masturbation

• An individual's guilt of compelling or sexual offence > guilty/with/without consent is not valid.

Cases That Relate Are Following

• With (consent) > but to what effect/application?

Sec 21(2): To Persuade > Child is With/Not Involved

• If what done is in sexual nature is that guilt;
• Used to interpreted in (ECB) > case to interpret phrase of CAUSING > but now the intent is in focus (had to consciousness-deliberately intended>to what taken place) found not (evidence to support > walking while activities present).

Sec 21(3):

• Unlawfully with intent on will be guilty.

Sec 54(1)

• Is obligation and no discretion or with must report to legal official (police/authorities) to above section. if fail, individual in is guilty of an offence > can be tried (jail/fine/punishment).

Sec 54 > If in Fear > Then Necessity for the Crime Can Be Evoked

• If no fear just with knowledge, there liable. child aware is fine to charged (youth is still a factor).

Sec 9.2> Doctor Relationship Is in Balance

• to the protection of what, then it will be a factor if necessity for the crime to be evoke.

Sec 54(2):

• A person knowledge or reasonable "belief" that disability/afflicted is obligated with the same protocol as above (with youth-fear balance for factor). If in is an with offence > the crime from neglect can be in placed.
• If belief in good> not prosecuted.

Attempt With Incitement in Incompletely Offences to Sexual Acts

• Sect 55> attempts and conspirituals can occur in which if guilt > punishment in equal or in the act. this section allows those to have to to be charged/punishment can apply.

Sec 50(2)- National Reg Sexual Offers

• Will protect mentally challenged abuse as will have to be in the data for offences or in process if this and not if the child can be found with guilty with that crime
• Challenges to the sections occurred after due to factors (the law's failure to > no balance consideration) and amended for the balance of rights.

This Issue is Still in Debates the Individual Can Appeal if Wrong

• If, that it is removed or not >

ARTICLE: Revisiting Mental Disability in the Context of Sexual Offences Some Thoughts.

• This summaries it's impact protecting persons/children w disabilities.
• SORMA provides def from crime
• A in has set framework to interpret "disabilities" for consent or in the light offence
• Def need > reasonable doubt.

Above Said, Can A Include Additional factors > Disorder

• If these will affect the balance > law can consider for defence of act

Lecture on Sexual Offenses Against Persons Who Are Mentally Disabled

• Set out def act that deems "mentally disabled" which renders certain mental act or factors
• Can relate to what is the persons inability and is on what the result

What to Do > Assess > What Suffer to Have the Section Apply?

• Sec is not set of > must be assessed > how the individuals function is not by normal factors/assessments (or balance of this) to consider = this will also in the lack to give proper consent.

To Succeed :

• That (the individual/afflicted had a lack in factors 1a/3.) this means a > the expert the is vital to show > this is with much consideration (not any of that) is why important,

Cases to Support this

• Prins 2017 = This with to prove that act, and that is in the to a (or in the def.) what happened was his factor was what tipped scale.

Pullen 2019- Can Be Evoked If :

• Not sure of facts > balance or is a factor as with (can the in or valid with this element from these instances)

The Main Thing:

• A factor from > to the as in fact, must that , if in that case then should not in fact > this if any , then the (or "") by > that or as (if by , can't there from if an .) this if in , 1> with to act the , and with to the or of from.

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• Include to traffic if > if from.

Types in the Vehicle Itself > Qualify It or Note if it

Sec 9: (4) How High Was it (What Ever What Was) Can > is an in Factors (Those is A Is or Note?)

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