Authored By: Nontobeko Charity Ngomane
University of South Africa
I. Introduction
South Africa is facing a substance use crisis that affects health, dignity and community safety. The Constitution promises everyone the right to access health care services.[1] However, the main drug law still criminalizes substance use.[2] In response, the City of Tshwane launched the Community Oriented Substance Use Programme (COSUP) to provide treatment and harm reduction in communities.[3] The question is whether COSUP can succeed when it has no legal protection. This article argues that without legislation, COSUP cannot fully meet the State’s constitutional duty under section 27, and the right to health for people who use drugs remains unfulfilled.
II. Legal Framework
The legal framework on substance use in South Africa is divided. The Constitution is the starting point. Section 27(1)(a) gives everyone the right to health care services.[4] Section 27(2) says the State must take reasonable legislative and other measures to achieve this right.[5] Section 10 protects dignity,[6] and section 12(2) protects bodily integrity.[7] People who use drugs are still “everyone”.
The main law is the Drugs and Drug Trafficking Act 140 of 1992 (Drugs Act).[8] It makes possession and use a crime.[9] The Act does not mention treatment or harm reduction.[10]
Policy has shifted. The National Drug Master Plan 2019-2024 (NDMP) treats substance use as a health issue.[11] It calls for expanded harm reduction.[12] COSUP, which predates this Plan, is consistent with it.[13] COSUP uses community health workers to give treatment and needle exchange.[14]
The problem is that COSUP is not in law. It is only policy and municipal guidelines.[15] This means no guaranteed budget and no protection for workers.[16] So policy allows COSUP, but the Act can criminalize it.[17]
III. Case Law Analysis
The key case on the right to health is Minister of Health v. Treatment Action Campaign (No. 2) (TAC).[18] The Court said the State must take reasonable measures and cannot exclude vulnerable groups.[19] “Reasonableness” requires a plan with law, budget and action.[20]
TAC was about HIV, but the principle applies to substance use.[21] People who use drugs are vulnerable and need health services.[22] By only using policy for COSUP, the State may not be acting reasonably.[23]
In Canada, Canada (Attorney General) v. PHS Community Services Society (PHS) held that shutting down a safe injection site violated the right to life, liberty and security of the person.[24] The Court said harm reduction is a health service.[25] South Africa can learn from this.
IV. Critical Evaluation
There is a gap between the Constitution and the Drugs Act.[26] The Constitution and the NDMP support health, but the Act supports punishment.[27] This hurts COSUP.[28]
First, without law there is no certainty. Funding can stop and workers can be arrested.[29] Second, criminalization stops people from going to COSUP.[30] This fails the TAC test of reasonable measures.[31]
In the City of Tshwane, I see the same problem. People avoid clinics because they fear arrest. COSUP cannot reach them if the law says they are criminals.[32]
The State must pass law, not just policy.[33] Portugal decriminalized and saw better health outcomes.[34]
V. Comparative Analysis
Portugal decriminalized personal use in 2001 and made harm reduction law.[35] This cut HIV and deaths.[36]
Canada in PHS protected safe injection sites as a constitutional right.[37] The Court forced the government to allow it.[38]
Both show that law is needed. South Africa only has policy for COSUP, which is weaker.[39]
VI. Conclusion
This article found a disconnect between the Constitution and the Drugs Act.[40] Section 27 requires reasonable health measures,[41] but the Act criminalizes use.[42] COSUP tries to bridge this but has no law behind it.[43]
TAC and PHS show the State must use law, not just policy.[44] Portugal and Canada prove legal reform works.[45]
The thesis is confirmed. Without legislation, COSUP cannot work and the right to health is not realized.[46]
It is recommended that Parliament pass a law recognizing harm reduction. The law must protect workers and users and provide funding.[47] The Drugs Act must be amended to decriminalize personal use.[48] Only then will the law match the Constitution.
References
[1] Constitution of the Republic of South Africa, 1996, s 27(1)(a).
[2] Drugs and Drug Trafficking Act 140 of 1992.
[3] City of Tshwane, COSUP Programme Overview (2016).
[4] Constitution, s 27(1)(a).
[5] Constitution, s 27(2).
[6] Constitution, s 10.
[7] Constitution, s 12(2).
[8] Drugs and Drug Trafficking Act 140 of 1992.
[9] Drugs and Drug Trafficking Act 140 of 1992, s 4(b).
[10] J. Csete & D. Wolfe, Seeing Through the Eye of the Needle 8 (Open Society Foundations 2017).
[11] Department of Social Development, National Drug Master Plan 2019-2024 10 (S. Afr.).
[12] Department of Social Development, supra note 11, at 25.
[13] City of Tshwane, supra note 3.
[14] City of Tshwane, supra note 3, at 3-4.
[15] Department of Health, Guidelines for the Implementation of COSUP (2018) (S. Afr.).
[16] Csete & Wolfe, supra note 10, at 12.
[17] Id.
[18] Minister of Health v. Treatment Action Campaign (No. 2) 2002 (5) SA 721 (CC) (S. Afr.).
[19] TAC, supra note 18, at paras. 27, 38.
[20] TAC, supra note 18, at para. 35.
[21] A. Dhai & D. McQuoid-Mason, Bioethics, Human Rights and Health Law 145 (Juta 2011).
[22] Id.
[23] TAC, supra note 18, at para. 68.
[24] Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134, para. 91 (Can.).
[25] PHS, supra note 24, at para. 105.
[26] Csete & Wolfe, supra note 10, at 15.
[27] Id.
[28] Id.
[29] Department of Health, supra note 15.
[30] Csete & Wolfe, supra note 10, at 20.
[31] TAC, supra note 18, at para. 70.
[32] Personal observation, Zwane Complex, Ekangala, 2025.
[33] TAC, supra note 18, at para. 35.
[34] Csete & Wolfe, supra note 10, at 30.
[35] Csete & Wolfe, supra note 10, at 30.
[36] Id.
[37] PHS, supra note 24.
[38] PHS, supra note 24, at para. 139.
[39] Csete & Wolfe, supra note 10, at 35.
[40] Constitution, s 27(2).
[41] Id.
[42] Drugs and Drug Trafficking Act 140 of 1992.
[43] City of Tshwane, supra note 3.
[44] TAC, supra note 18; PHS, supra note 24.
[45] Csete & Wolfe, supra note 10, at 30.
[46] TAC, supra note 18, at para. 68.
[47] Department of Social Development, supra note 11, at 28.
[48] Csete & Wolfe, supra note 10, at 40.
Bibliography
Legislation
Constitution of the Republic of South Africa, 1996
Drugs and Drug Trafficking Act 140 of 1992
Case Law
Minister of Health v. Treatment Action Campaign (No. 2) 2002 (5) SA 721 (CC)
Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134
Government Publications
City of Tshwane, COSUP Programme Overview (2016)
Department of Health, Guidelines for the Implementation of COSUP (2018)
Department of Social Development, National Drug Master Plan 2019-2024
Books and Reports
Csete, J. & Wolfe, D., Seeing Through the Eye of the Needle (Open Society Foundations 2017)
Dhai, A. & McQuoid-Mason, D., Bioethics, Human Rights and Health Law (Juta 2011)
