Addicts and convicts aren't the same thing, say ticked-off judges
Two high court judges scrapped jail terms for two addicts, saying prison isn't the answer
Drug addicts matter and prison is unlikely to help them, say two high court judges.
Acting Judge Daniel Thulare — also the chief magistrate in Cape Town — and Judge Mokgoatji Dolamo made their remarks in the Cape Town High Court while reviewing three-year prison sentences for two addicts.
They scrapped the sentences and ordered the magistrate’s courts that imposed them to consider holding an inquiry under the Prevention and Treatment for Substance Abuse Act and putting the men on probation so their addiction could be treated.
Thulare, who wrote the judgment, said Tom Frederick was jailed after pleading guilty to having a tik lolly. It was his sixth conviction for possession of “a minimal amount” of tik. Anathi Maxhongo pleaded guilty to possessing 1.4g of mandrax and was convicted for the 11th time.
“Both accused ... present one clear message,” said Thulare. “Long-term imprisonment or the fear thereof is not an answer to crimes primarily against oneself ... and in particular to substance abuse as a lifestyle choice.”
The acting judge waxed lyrical on the nature of addiction and the approach courts should adopt when sentencing its victims.“Generally, drugs are abused by the emotionally afflicted. Substance abuse is a manifestation of an emotional response to uncertain future developments which induce fear,” he said.
“Drug abuse is often a symptom of a flight from reality, or a retreat into the self so that one does not deal with the fear of powerlessness because of the behaviour of others towards one’s self worth, or what one perceives as an unfair distribution of power and ability.
“Abuse of drugs is often a comfort zone for those who are at the imaginary train station of life waiting for their turn to board on the railway line to a better life and prosperity.
“Primarily, it is a crime against one’s own self. It is a lifestyle. It is what one selects as his or her way of life as opposed to selection of what one necessarily requires to live. It is more of a social wrong than it is a serious crime.
“It takes courage, guts and determination to wake up beneath dirty cardboard boxes and sacks under a bridge, to move and progress in life to drive one’s own car over that bridge.“It takes misdirected fun and recreation, hopelessness, uncertainty and fear to smoke your life, including your car, towards destruction under a bridge amidst the dirty boxes and sacks. It is a question of character, and inner and mental strength and a winning attitude. It is a choice.”
Thulare said prison should not be regarded as a sausage machine that treated all prisoners alike. Every time an addict was sentenced, attempts should be made “to try and establish where the accused dropped the ball of his or her vision for their life, and what contributed to that ball being dropped”.
He added: “Courts should strive in their sentencing, as the faith leaders would say, ‘to win back the soul’ from outside prison. The ‘hit back’ approach of the majority of our magistrates’ courts is clearly not working.”
If the prosecution had not arranged a probation report on those accused of minor drug possession offences, he said, magistrates should insist on one. And prosecutors should be compelled to explain why addicts were not suitable for diversion programmes.
“The lives of the accused matter,” said Thulare.