Drug charges in South Africa are governed by the Drugs and Drug Trafficking Act 140 of 1992. The two main offences are use or possession of drugs under section 4(b), carrying a fine or imprisonment of up to 15 years, and dealing in drugs under section 5(b), carrying up to 25 years’ imprisonment, with dealing defined broadly enough to include importing, cultivating, manufacturing, supplying, selling, and transmitting a drug.
The maximum sentence depends on which Schedule of the Act the drug falls under, not on the street name the police use. This guide lists the charges, the maximum penalty for each, how drugs are classified, and what courts actually consider at sentencing.
The Two Main Charges: Possession and Dealing
Section 4(b) criminalises using or possessing any dangerous or undesirable dependence-producing substance without a lawful prescription or permit. Section 5(b) criminalises dealing in those substances. Dealing is defined widely: transporting drugs for someone else, growing cannabis for sale, holding drugs for distribution, and passing a parcel to another person can all amount to dealing, which is why the distinction between the charges is the single biggest sentencing factor in most drug cases.
List of Drug Charges and Maximum Sentences
| Charge | Section of Act 140 of 1992 | Maximum penalty |
|---|---|---|
| Use or possession of a dangerous or undesirable dependence-producing substance | 4(b), read with 13(d) | Fine as the court deems fit, or imprisonment up to 15 years, or both |
| Dealing in a dangerous or undesirable dependence-producing substance | 5(b), read with 13(f) | Imprisonment up to 25 years, with or without a fine |
| Use or possession of a dependence-producing substance, such as schedule-only medicines | 4(a), read with 13(c) | Fine as the court deems fit, or imprisonment up to 5 years, or both |
| Dealing in a dependence-producing substance | 5(a), read with 13(e) | Fine as the court deems fit, or imprisonment up to 10 years, or both |
| Manufacture or supply of scheduled substances knowing they will be used to make drugs | 3, read with 13(b) | Fine as the court deems fit, or imprisonment up to 15 years, or both |
| Acquisition or conversion of drug proceeds | 6 and 7, read with 14 | Fine as the court deems fit, or imprisonment up to 15 years, or both |
| Hindering police, refusing to answer, or giving false information under section 16 | 16 | Fine or imprisonment up to 12 months, or both |
Section 64 gives magistrate’s courts jurisdiction to impose these penalties even where they exceed the court’s ordinary punitive jurisdiction, so drug matters of this kind are prosecuted in regional courts across the country, with large commercial matters going to the High Court.
How Drugs Are Classified in the Schedules
Schedule 2 of the Act divides drugs into three categories, and the category matters as much as the charge. The full current consolidated text of the Drugs and Drug Trafficking Act sets out every listed substance.
| Category | Common examples |
|---|---|
| Part II, dangerous dependence-producing | Cocaine and coca leaf, opium, morphine, methadone, fentanyl, heroin-adjacent opiates such as pethidine |
| Part III, undesirable dependence-producing | Heroin, methamphetamine (tik), MDMA or ecstasy, LSD, methcathinone (cat), methaqualone (Mandrax), cannabis (dagga) and cannabis products |
| Part I, dependence-producing | Prescription-class substances such as buprenorphine, pentazocine and diethylpropion |
Minimum Sentences for Commercial Quantities
Parliament has amended the Schedules and penalty provisions over the years, and large commercial prosecutions attract prescribed minimum sentences under the Criminal Law Amendment Act 105 of 1997 for dealing in drugs above specified quantities. Where a minimum sentence applies, the court must impose it unless substantial and compelling circumstances exist. Quantity, packaging, scales, cash, and customer lists are the evidence the State uses to move a case from possession to dealing with a minimum sentence.
Cannabis: The Special Case
The Constitutional Court’s judgment in Minister of Justice and Constitutional Development v Prince in 2018 removed criminal liability for adults who use, possess, or cultivate cannabis in private for personal consumption. Everything outside that private sphere remains criminal: dealing in cannabis, possession in public, possession near schools, and supplying cannabis to others are still prosecuted, and dealing convictions can still attract heavy sentences.
Presumptions the State Once Relied On
The Act originally created presumptions that shifted the burden onto the accused, for example that possession of more than 115 grams of dagga, or of an undesirable dependence-producing substance, meant the accused was dealing. The Constitutional Court struck down key presumptions, including the dagga presumption in S v Bhulwana; S v Gwadiso in 1995, because they violated the right to be presumed innocent. Today the State must prove dealing beyond reasonable doubt, which makes the possession-versus-dealing dispute the central battleground in most trials.
Forfeiture and Restraint of Assets
A conviction allows the court to declare the drugs, cash, phones, vehicles, and other items connected to the offence forfeit to the State. Separately, Chapter V of the Act and the Prevention of Organised Crime Act 121 of 1998 allow restraint and confiscation of the proceeds of drug trafficking, sometimes before trial. Accused persons regularly lose cars and cash even where the criminal charge is later resolved, so asset defence runs parallel to the criminal case.
What Courts Consider at Sentencing
Maximum sentences are ceilings, not starting points. Courts weigh the type and quantity of drug, whether the accused used or traded, the role played in larger operations, personal circumstances, age, previous convictions, and prospects of rehabilitation. First-time offenders caught with small quantities for personal use are typically sentenced to fines, suspended sentences, or treatment-focused options, while commercial dealing attracts direct imprisonment. A guilty plea at an early stage can reduce the sentence materially.
Common Mistakes to Avoid
- Making a statement to police before consulting an attorney. Admissions that the drugs were “for a friend” or “I was holding them” have converted possession charges into dealing charges.
- Assuming small quantity means a small case. Packaging, cash, messages, and scales can support a dealing charge regardless of weight.
- Believing a paid fine ends everything. A fine paid without a plea agreement or acquittal still leaves a criminal record, with long-term travel and employment consequences.
- Ignoring the search and seizure angle. Unlawful searches and improperly handled chain-of-custody evidence regularly collapse drug prosecutions, but only if the point is properly raised.
- Waiting for trial to engage a lawyer. Bail opposition in dealing matters turns on the strength of the State’s case, so early involvement matters most at the bail stage.
- Forgetting cannabis is not fully legal. The Prince judgment protects private adult use only, and dealing or public possession charges proceed as before.
Frequently Asked Questions
What is the sentence for drug possession in South Africa?
Use or possession of a dangerous or undesirable dependence-producing substance under section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 carries a fine or imprisonment of up to 15 years. First-time offenders with small personal-use quantities are usually sentenced to fines, suspended sentences, or treatment-based options rather than direct imprisonment.
What is the sentence for dealing in drugs in South Africa?
Dealing in a dangerous or undesirable dependence-producing substance under section 5(b) carries a sentence of up to 25 years’ imprisonment, with or without a fine. Large commercial quantities can attract prescribed minimum sentences under the Criminal Law Amendment Act 105 of 1997 unless substantial and compelling circumstances justify a lesser sentence.
What drugs fall under the Drugs and Drug Trafficking Act?
Schedule 2 of the Act lists dangerous dependence-producing substances such as cocaine, opium, methadone and fentanyl, and undesirable dependence-producing substances such as heroin, methamphetamine or tik, MDMA, cat, Mandrax and cannabis. The category a drug falls under, together with the charge, determines the maximum sentence.
Is cannabis still a drug offence in South Africa?
Only outside private adult use. The Constitutional Court’s Prince judgment in 2018 decriminalised adult use, possession, and cultivation of cannabis in private for personal consumption. Dealing in cannabis, possession in public, and supply to others remain criminal offences.
What is the difference between possession and dealing charges?
Possession means having or using a drug for yourself. Dealing includes importing, cultivating, manufacturing, supplying, selling, transmitting, or transhipping a drug, and carries far heavier maximum sentences. The State often relies on quantity, packaging, cash, and messages to prove dealing, and disputing that evidence is usually the core of the defence.
Get help with a drug charge. Otrebski Attorneys’ criminal defence team in Sandton handles possession and dealing matters, from bail applications to trial, including unlawful search challenges. Call 060 500 3098 or book an appointment.
Disclaimer. This article is general information, not legal advice for a specific matter. Confirm current law against the Drugs and Drug Trafficking Act 140 of 1992 as amended, and consult an admitted attorney about any drug charge. Otrebski Attorneys’ criminal department in Sandton defends drug-related matters.