South Africa Is Facing A Substance Use Crisis That Affects Health

COMPONENT II: 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 services¹. However, the main drug law still criminalizes substance use². In response, the City of Tshwane launched the Community Oriented Substance Use Program, COSUP, to provide treatment and harm reduction in communities³. 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.

COMPONENT III: MAIN BODY

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 services⁴. Section 27(2) says the State must take reasonable measures to achieve this right⁵. Section 10 protects dignity⁶ and section 12(2) protects bodily integrity⁷. People who use drugs are still “everyone”.

The main law is the Drugs and Drug Trafficking Act 140 of 1992⁸. It makes possession and use a crime⁹. The Act does not mention treatment or harm reduction¹⁰.

Policy has shifted. The National Drug Master Plan 2019-2024 treats substance use as a health issue¹. It calls for expanded harm reduction¹². COSUP was created under this Plan¹³. COSUP uses community health workers to give treatment and needle exchange¹⁴.

The problem is COSUP is not in law. It is only policy and municipal guidelines¹⁵. This means no guaranteed budget and no protection for workers¹⁶. So policy allows COSUP but the Act can criminalize it¹⁷.

CASE LAW ANALYSIS

The key case on the right to health is _Minister of Health v Treatment Action Campaign_¹⁸. The Court said the State must take reasonable measures and cannot exclude vulnerable groups¹⁹. “Reasonableness” requires a plan with law, budget and action²⁰.

_TAC_ was about HIV but the principle applies to substance use²¹. People who use drugs are vulnerable and need health services²². By only using policy for COSUP, the State may not be acting reasonably²³.

In Canada, _Canada (AG) v PHS Community Services Society_ held that shutting down a safe injection site violated the right to life²⁴. The Court said harm reduction is a health service²⁵. South Africa can learn from this.

CRITICAL EVALUATION

There is a gap between the Constitution and the Drugs Act²⁶. The Constitution and NDMP support health, but the Act supports punishment²⁷. This hurts COSUP²⁸.

First, no law = no certainty. Funding can stop and workers can be arrested²⁹. Second, criminalization stops people from going to COSUP³⁰. This fails the _TAC_ test of reasonable measures³¹.

In  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 criminals³².

The State must pass law, not just policy³³. Portugal decriminalized and saw better health outcomes³⁴.

COMPARATIVE ANALYSIS

Portugal decriminalized personal use in 2001 and made harm reduction law³⁵. This cut HIV and deaths³⁶.

Canada in _PHS_ protected safe injection sites as a constitutional right³⁷. The court forced the government to allow it³⁸.

Both show law is needed. South Africa only has policy for COSUP, which is weaker³⁹.

COMPONENT IV: CONCLUSION

This article found a disconnect between the Constitution and the Drugs Act⁴⁰. Section 27 requires reasonable health measures⁴¹, but the Act criminalizes use⁴². COSUP tries to bridge this but has no law behind it⁴³.

_TAC_ and _PHS_ show the State must use law, not just policy⁴⁴. Portugal and Canada prove legislative reform works⁴⁵.

The thesis is confirmed. Without legislation, COSUP cannot work and the right to health is not realized⁴⁶.

It is recommended that Parliament pass a law recognizing harm reduction. The law must protect workers and users and provide funding⁴⁷. The Drugs Act must be amended to decriminalize personal use⁴⁸. Only then will the law match the Constitution.

COMPONENT V: 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_ 2002 5 SA 721 (CC)

_Canada (Attorney General) v PHS Community Services Society_ 3 SCR 134[2011]

Government Publications

Department of Social Development _National Drug Master Plan 2019-2024_

Department of Health _Guidelines for the Implementation of COSUP_ 2018

City of Tshwane _COSUP Programme Overview_ 2016

Books and Reports

Dhai A and McQuoid-Mason C _Bioethics, Human Rights and Health Law_ (Juta 2011)

Csete J and Wolfe D _Seeing Through the Eye of the Needle_ (Open Society Foundations 2017)

Reference(S):

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, 1996, s 27(1)(a).

⁵ Constitution, 1996, s 27(2).

⁶ Constitution, 1996, s 10.

⁷ Constitution, 1996, 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_ (Open Society Foundations 2017) at 8.

¹¹ Department of Social Development _National Drug Master Plan 2019-2024_ at 10.

¹² Department of Social Development _National Drug Master Plan 2019-2024_ at 25.

¹³ City of Tshwane _COSUP Programme Overview_ 2016.

¹⁴ City of Tshwane _COSUP Programme Overview_ 2016 at 3-4.

¹⁵ Department of Health _Guidelines for the Implementation of COSUP_ 2018.

¹⁶ Csete & Wolfe n 10 above at 12.

¹⁷ Ibid.

¹⁸ _Minister of Health v Treatment Action Campaign_ 2002 5 SA 721 (CC).

¹⁹ _TAC_ n 18 above at para 27 and 38.

²⁰ _TAC_ n 18 above at para 35.

²¹ A Dhai & C McQuoid-Mason _Bioethics, Human Rights and Health Law_ (Juta 2011) at 145.

² Ibid.

²³ _TAC_ n 18 above at para 68.

²⁴ _Canada (Attorney General) v PHS Community Services Society_ 3 SCR 134 at para 91.

²⁵ _PHS_ n 24 above at para 105.

²⁶ Csete & Wolfe n 10 above at 15.

²⁷ Ibid.

²⁸ Ibid.

²⁹ Department of Health n 15 above.

³⁰ Csete & Wolfe n 10 above at 20.

³¹ _TAC_ n 18 above at para 70.

³² Personal observation, Zwane Complex, Ekangala, 2025.

³³ _TAC_ n 18 above at para 35.

³⁴ Csete & Wolfe n 10 above at 30.

³⁵ Csete & Wolfe n 10 above at 30.

³⁶ Ibid.

³⁷ _PHS_ n 24 above.

³⁸ _PHS_ n 24 above at para 139.

³⁹ Csete & Wolfe n 10 above at 35.

⁴⁰ Constitution s 27(2).

⁴¹ Ibid.

⁴² Drugs and Drug Trafficking Act 140 of 1992.

⁴³ City of Tshwane n 13 above.

⁴ _TAC_ n 18 above; _PHS_ n 24 above.

⁴⁵ Csete & Wolfe n 10 above at 30.

⁴⁶ _TAC_ n 18 above at para 68.

⁴⁷ Department of Social Development n 11 above at 28.

⁴⁸ Csete & Wolfe n 10 above at 40.