The South African Drugs and Drug Trafficking Act 140 of 1992 Read with the South African Criminal Law Amendment Act 105 of 1997: An Example of a One Size Fits All Punishment?
Trafficking in drugs is a global problem. The legal response to the challenge of trafficking in drugs is found in harsh penalties usually founded in direct imprisonment for extended periods of time. The worldwide trend towards imprisoning drug traffickers, and indeed drug users, is mimicked in South Africa. This submission examines the sentencing or penal effects of the drug Nyaope, which was included in Schedule I and II of the South African Drugs and Drug Trafficking Act 140 of 1992 (Hereinafter the Drugs and Drug Trafficking Act.), in 2014. The effect of the inclusion is that Nyaope users and traffickers are now punished in the same manner as any other traffickers namely, through direct imprisonment. This submission argues that the inclusion of Nyaope and the resultant effect on sentencing is an example of net widening and results all too often in a one size fits all (The phrase ‘One size fits all’ literally describes commercial products tailored for suitability in all instances. It has since extended to describing effects of methods and measures upon applications, hence its adoption in several fields interpretations including law. As a legal term it differentiates general understanding of the application of particular principles to specific practical application. For example, in multilateral trade, it is used to analyse a perspective inscribing commonness in an uncommon or uncompetitive circumstance such as in the rationale behind the imposition of limitations on special and differential treatment principles for developing and least developed countries against developed countries. This article uses this phrase to argue that although the traditionally harsh sentences fit drug traffickers this is not always the case, especially where perpetrators are victims of drug abuse. For literal interpretation, see http://dictionary.cambridge.org/CambridgeDictionaries and http://dictionary.cambridge.org/dictionary/british/one-size-fits-all. For multilateral trade legal perspective, refer to M.M.M. Monyakane, Special and Differential Treatment under the World Trade Organisation (WTO) with Specific Reference to the Application of the WTO Agreement on Agriculture, Dissertation in partial fulfillment of the LLM degree in Mercantile Law, University of the Free State South Africa http://etd.uovs. ac.za/ETD-db/theses/available/etd-09132006-92208/unrestricted/MonyakaneMMME. pdf 2005,75; as well as S. Michael, ‘One Size Fits All’ An Idea Whose Time Has Come and Gone Proceedings of the 21st International Conference on Data Engineering (ICDE 2005) 1084-4627, who explains this concept from a different professional perspective.) approach to the sentencing of drug users and traffickers. This submission uses the previous American practice of using a grid system of sentencing to demonstrate that the inclusion of Nyaope in the Schedules of the Drugs and Drug Trafficking Act has reduced sentencing discretion in a manner not conducive with the limitation clause. The paper argues that the South African approach at present faces the same challenges faced by American courts under the previous grid system of sentencing. The submission argues that the South African approach to sentencing Nyaope users should reflect the principle of fairness and not use an approach which treats all drug traffickers as one and the same for purposes of sentencing.
KeywordsCrack Cocaine Hate Crime Sentencing Guideline Public Prosecution Service Judicial Discretion
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