This article was written by Gayle Greylings – a Member of the National Prosecuting Authority
Oftentimes I am approached in the course of my employment by a member of the public desperate to help a loved one who is afflicted by the scourge of addiction. In the majority of these cases, the family has been turned away from Rehabilitation centers. The reason for this is that most rehabilitation centers limit themselves by the traditional mores surrounding drug addiction. That is that patients are only accepted if they ‘want’ to get better. In fact, the popular perception is that an addict can only be rehabilitated if he ‘wants to’. This article will show that this is not the case. All those people who are so far gone that they cannot even conceptualize the idea that they need help are not beyond help. In fact, the law specifically caters to these people.
Traditionally rehabilitation has been administered by the Dept. of Social Welfare yet addiction and its effects continue to escalate. Addiction is devastating individuals, families, communities, the criminal justice system, and the economy. The law recognizes that more is required than merely the intervention of the Dept. Social Development. It, therefore, provides for a comprehensive multidisciplinary approach that recognizes the importance of early intervention, harm, and demand reduction. Moreover, it has been declared unlawful for the law to discriminate between those who ‘want’ to get better and those who refuse help, the young and old, first-time offenders, and recidivist offenders. South Africa is a signatory to international instruments which obligate it to regard the affliction of addiction as a disease rather than a moral failure.
This change is more has been reflected in two main ways in the justice system. It is possible to obtain a court order involuntarily committing a person for rehabilitation. In practice, this means that consent is not required and it allows the loved ones with the assistance of the court to get the help the afflicted need. In order for this option to be made available the person must be a danger to himself or the immediate environment, pose a major public health risk, in any other manner harm his own welfare or the welfare of others, or commits criminal offenses to sustain his dependence.
Such an order can be sought at a magistrate’s court. In practice, the interested person must approach the public prosecutor at the court having jurisdiction. The interested person must provide an affidavit and a social worker’s report alleging the harm and danger as stated. The prosecutor will then facilitate the drawing up of a summons calling upon the afflicted person to appear in court on a specific day (normally 14 days) in order to answer the allegation that he is a person who causes harm to himself and is addicted to drugs. The court will conduct an inquiry as to whether the person is one who would benefit from an order being granted and that such would be in his best interests. If the court is satisfied with the same the court will grant an order of a minimum of 6 months to commit a person to a rehabilitation center.
The concern has been voiced to me as to whether this means that the person so committed will have a criminal record. The answer is no. At this stage the commitment is civil. However, if the court order is infringed by the afflicted person absconding from the treatment center then a criminal case of contempt of court can be opened by the rehabilitation center in whose custody the afflicted person has been placed by the court order. Upon conviction, a prison sentence or a fine may be imposed. This sanction is necessary in order to maintain the integrity of past and future commitment orders. A culture of respect for the order must be maintained in order for this law to be of any meaningful assistance to the afflicted. Moreover, it is the threat of this sanction itself that allows any degree of effectiveness via this mode of rehabilitation.
The other manner that a court order can be implemented is where the afflicted person has been charged with a criminal offense that he committed in order to sustain his addiction. Where the accused in such a case is willing to accept responsibility for his actions and plead guilty a court order involuntarily committing that person to a rehabilitation center may be granted in addition to or in lieu of a sentence. This option is only available for a limited range of offenses and it must be remembered that any abscondment will result in further criminal charges. This avenue is a manifestation of the international opinion that traditional sentencing in particular custodial sentences does nothing for the problem of addiction and in fact, makes it worse.
Another query that is often raised is whether an interested person can still approach the court for help if the addiction is due to a ‘legal drug, in particular alcohol, dagga, and controlled medication. The test is whether there is an addictive behavior that causes harm and poses a danger. It is not based on the substance itself.
I have been asked ‘Why now?’. This law has been available for years. The new Act came into operation in 2008 and the previous legislation was in existence since 1992 however there has been limited and sporadic use of same. This is beginning to change. As I previously stated this is due to international and national pressure. Communities are putting pressure on governments to implement strategies to minimize this scourge. Forward we need to educate court staff, the police, and as yet non-participating rehabilitation centers.
Going forward we also need to ensure that when there is a need that there are adequate facilities available to assist the afflicted. Unfortunately, Government facilities are overwhelmed. It is my opinion therefore that we need to look at increased co-operation between the courts and private facilities. On a local level, I have been doing this in Amanzimtoti. I have had amazing assistance from Tetelestai in Toti and ARCA Rehabilitation Centre in Durban.
If I can appeal to any Rehabs out there who want to offer their assistance to courts or companies willing to sponsor people in rehabs to please contact the local prosecutor at mag court.