The Cape High Court recently dealt with the review of two decisions of the lower courts in which prison sentences were handed to two offenders who had previously been convicted of multiple possession of drugs offences. Both individuals were on several occasions charged with and convicted of possession of small quantities of methamphetamine (‘tik’) and methaqualone (mandrax). Both were facing prison or a fine and thus the matter ended in the High Court to be reviewed.

The High Court made a number of important observations, firstly relating to petty offences: “The number of times that the offence is being committed does not make it less petty. It remains petty no matter how often it is committed [ . . .]. In my view, the number of times that an accused commits a particular offence does not make him or her less human, such that he or she is to be discriminated unfairly against and not enjoy the equal benefit of the law, in particular the legal principles on sentencing.” The High Court was also mindful that drug use and abuse ‘is a crime against oneself’ and that the threat of long term imprisonment is not an answer to crimes against oneself.

Instead the Court asked that in such cases, where there is a long history of drug use and abuse, the prosecution should  rather request a probation officer’s report to investigate the accused’s circumstances and the desirability or not of prosecution. In effect, the Court asked for a different approach, one that does not emphasise criminalisation, in dealing with petty offences, especially where it concerns the possession of small quantities of drugs for personal use.  Both cases were referred back to the trial courts for resentencing and possible inquiry in terms of the Prevention and Treatment of Substance Abuse Act.

S v Frederick & S v Maxhongo,

Judgment on Review 11 July 2018,

Review 18531 and Review 18532,

Available at https://acjr.org.za/resource-centre/s-v-frederik-s-v-maxhongo.pdf

In the High Court of South Africa: The State vs Tom Carslin Frederick and the State vs Anathi Maxhongo Coram: Dolamo J; Thulare