South Africa’s police are incentivized to raise arrest rates for drug-related crime, which is debilitating the court system without undermining drug markets.

Drug-related crimes are given prioritized treatment in South Africa’s crime statistics and police monitoring. Law-enforcement targets aim to increase arrests for drug-related crimes year on year.¹ This includes arresting people for possession of drugs for personal use. The rationale behind this approach is that the use of drugs, in addition to being illegal, drives further crime and violence.² However, this rationale is built on a number of dubious assumptions relating to the nature of drug markets and the drivers of drug-related crime and violence, and it has knock-on damaging effects for South Africa’s criminal-justice system.

To investigate the effect that these targets are having on South Africa’s criminal-justice system, our research team obtained data from the court roll of Wynberg District Magistrates’ Court, Cape Town, for cases tried over the five-month period between January and May 2019.

Magistrates’ courts are the lowest in South Africa’s court hierarchy, and divided into district and regional courts. District courts hear civil matters and less serious criminal cases (for example, district courts are not mandated to try cases of rape or murder). Regional courts also hear civil cases, but also more serious criminal cases, which are referred from district courts at the magistrate’s discretion, according to both the severity of the case in question and the previous criminal record of the defendant.

Cape Town is served by over a dozen district magistrates’ courts and a smaller number of regional courts. Wynberg is a suburb that borders the Cape Flats on the southern fringes of Cape Town, and the catchment area of the district magistrates’ court includes both Wynberg Main Road, a notorious hub of criminal activity, several that have high levels of drug-related and/or gang crime (such as Manenberg, Steenberg, Wynberg and Grassy Park), and other neighbourhoods with lower rates of crime overall, such as Rondebosch (see the map). Wynberg is also home to one of the (fewer) regional courts to which cases are referred.

Figure 1 Wynberg Main Seat

The data collected provides key insights into how some of South Africa’s most active drugs markets are being policed and the impact of these strategies on the court system. The data compared the proportion of drug-related offences (broken down into cases of possession for personal use and dealing offences) to other prominent crime types: assault (including cases of grievous bodily harm), theft and domestic violence (see figure 2).

The differentiation between a charge for possession for personal use and dealing (possession with intent to sell) is a decision taken according to the discretion of both the police officers and the magistrate involved according to the weight and value of drugs seized: more than 30 ‘units’ of one type of drug generally results in a dealing charge. What constitutes a unit varies according to the drug type: for heroin, a unit is a quarter gram; for cannabis (known locally as ‘dagga’), a unit is a small packet known as a ‘stopper’ (equating to one cigarette’s worth of cannabis), although different grades carry different values for both buyers and police.

Figure 2 Cases brought before Wynberg Magistrates’ Court, January–May 2019

We found that 99.3% of all drug-related cases brought before the Wynberg Magistrates’ Court during this period related to possession offences, while the number of cases for drug dealing never rose above five a month. Dealing cases brought before the court in this period mostly related to dealing in dagga and tik (methamphetamine), with isolated cases involving heroin and cocaine. The paucity of dealing cases (the remaining 0.7%) does reflect a certain proportion of higher-level dealing cases that are referred to the regional court; however, it suggests that even at the ‘street’ level, the majority of those being picked up by the police are users, and not even street ‘hustlers’.

What is perhaps even more alarming is that, compared to assault, domestic violence and theft cases, drug offences made up 52% of the total, which remained consistent across the five-month period. The total number of possession cases (1 354) was more than double the second-most frequent crime type: assault (586 cases).

This high proportion of drug-possession cases passing through the Wynberg court is a good indication of how arresting people who use drugs is placing a huge burden on South Africa’s entire criminal-justice system, particularly in magistrates’ courts. It also eventually places a strain on the prison system.

The 2018/19 crime statistics for South Africa, released in September by the South African Police Service, show that 68.6% of the total number of crimes detected by police action were drug-related.³ This means the majority of proactive and street-level policing is directed towards drug-related crime. If the data from the Wynberg courts is any indication, it also means that most of this policing effort is directed towards targeting offences for drug possession for personal use, rather than the retail, street-level drug trade (which would likely be tried in the same court). For completeness, we would need data from the Regional Court to make an informed comparison about the amount of police resources that are going into investigating higher-level drug-related organized crime and trafficking, but preliminary research suggests that these figures will not be redeeming.

Analysis

Current government-mandated targets for arrests for drug-related offences – which are translated into specific targets at the local, station level – create perverse incentives for police officers. It becomes more expedient for the police to pursue simple, low-level possession cases by arresting known drug users (an approach that ramps up arrest rates) rather than following more complex, resource-intensive investigations that target powerful criminal actors and have a bigger impact.

This strategy is widely acknowledged to be counterproductive. Criminalizing drug users does not diminish drug use (or, consequently, the scale and profitability of the consumer market) or reduce street-level crime.⁴ Nor is drug use necessarily a driver of violent crime, as the underlying logic of this strategy assumes.⁵ In fact, a key driver of drug-related violence in the Cape Flats and South Africa more broadly is competition between gangs over territorial control for drug sales, and not violence committed by users.⁶

Furthermore, imprisonment of drug users exacerbates pre-existing problems by excluding already marginalized people from society and formal employment,⁷ and compromises the legitimacy of the police and courts in already marginalized communities, which, in turn, has the effect of fuelling gang recruitment and damaging effective intelligence building and investigations into serious criminal activity.

Our interviews across neighbourhoods with high crime rates in Cape Town also show that the pressure to keep up with target arrest figures has led to police officers targeting drug users through stop-and-search in areas where drug purchases are known to be made. Known points of sale and consumption are target sites for corrupt police, who allegedly extort bribes. Users have also reported other forms of abuse by police: false accusations or cases of police planting drugs in order to falsify a possession charge.⁸ The criminalization of drug use and possession is therefore creating an incentive and opportunity for corruption.⁹

As mentioned, these cases overburden South Africa’s already overstretched court system, which is struggling with under-resourcing and under-staffing.¹⁰ The already constrained resources in the courts and police service could be better allocated to other pressing forms of crime, such as domestic violence. Violence against women in South Africa, and impunity of the perpetrators, has reached such levels recently that it was described by President Cyril Ramaphosa as a ‘crisis’ situation in September.¹¹ Domestic assault cases heard in lower courts can be an important point of intervention as part of a strategy for preventing femicide, and as such should be given adequate attention – something that is unlikely to happen when courts are generally overburdened.

Moreover, people working within the criminal-justice system are highly critical of it. Our interviews with prosecutors reveal that only a portion of drug-related arrests are brought to trial. Reports from Wynberg Magistrates’ Court suggest that National Prosecuting Authority staff are working to triage low-level cases and administer other sanctions, such as fines rather than custodial sentences. This is in the interest of saving court time and because magistrates acknowledge that criminalizing drug users is simply counterproductive.

Therefore, it seems that these two crucial parts of South Africa’s criminal-justice system are in conflict with each other: as the police are incentivized to flood the courts with low-level drug-possession cases, the courts are working to reduce their workload and divert offenders to other routes. Police interviewed in the course of our research likewise acknowledge that the strategy is misguided, and that they are forced to pursue management targets that are divorced from community needs.

The challenge lies in the fact that a key indicator used to monitor and evaluate police performance is driving counterproductive and unethical police behaviour. It is also contibuting to the court system’s current state of dysfunction. Although the complex drivers of South Africa’s drugs markets may be extremely difficult to tackle, rethinking a police performance target that has serious and unintended counterproductive effects might be a relatively easy starting point.

Cannabis

There is one final, tangential issue raised by this data. While drug-related arrests accounted for the majority of arrests in the data analyzed here, in 2018 they decreased by 28.1% on the previous year. This is almost certainly a result of the Constitutional Court ruling of 18 September 2018 legalizing the personal possession and use of cannabis. Despite the ruling, however, cannabis possession continues to provide a proportion of the cases that are heard in the Wynberg court. This is because although the decision allows cultivation and consumption of cannabis in private homes, possession on the street remains a chargeable offence. Our interviews with police officers suggest that arrests continue to be made for possession of even just one or two ‘stops’ [a standard retail dose] of cannabis.

Notes