South Africa

OP-ED: Dagga possession ruling set to impact on the NPA’s conviction performance rate

The Constitutional Court ruling on the private use of dagga is likely to impact on the performance record of the National Prosecuting Authority (NPA). This ruling has immediate effect which means the state is now barred from arresting or convicting anyone for mere possession of dagga in circumstances which suggest private use. How will this impact on the number of convictions? More importantly, could it herald a much-needed change of focus?

Although the NPA does not report on convictions by crime type, the SAPS has reported on convictions in relation to what it calls “serious crimes” charges since 2006/7. Comparing 2006/7 to 2016/17 SAPS data shows that only three serious crime types have increased in number of convictions. The largest increase in convictions has been in drug-related convictions. Over 20 years drug-related convictions have increased by 565% to 152 074 convictions. Drug-related convictions numbered only 65,948 in 2006/7 and only 22,864 in 1996/7, according to data obtained from SAPS at the time. Yet total convictions have decreased. Even as drug-related convictions soared, total convictions recorded by the NPA dropped dramatically by almost a quarter from 332 544 in 2002/3 to a low in 2007/8 of 254 828. Subsequently the total number of convictions rose to just under 2002/3 levels: in 2016/17 the number was 321 166. Unfortunately a large proportion of this recovery in total number of convictions was due to the increase in drug-related convictions: the number of drug-related convictions in 2016/17 is almost half (47%) of the case convictions recorded by the NPA and 49% of the serious crime charge convictions recorded by SAPS in 2016/17. Non-drug-related convictions of serious crimes have decreased by 24% over ten years with only 169 092 in 2016/17 compared to 221 096 in 2006/7. Non-drug convictions are only 53% of the NPA total. Only two serious crime types have recorded an increase in number of convictions. The number of aggravated robbery convictions (including hijacking and home invasions) has increased by 84% over 10 years to 5,403 convictions in 2016/17. Sexual offence convictions have increased by 30% over ten years to 7,704 in 2016/17. The increase in these two types of convictions is an achievement as these convictions are an important priority as well as being difficult to obtain – but the numbers are dwarfed by the number of drug-related convictions. Combined, the number of aggravated robbery and sexual offence convictions amount to less than 9% of the number of drug-related convictions. Furthermore, their numbers reflect a very low percentage of the relevant reported crime. Convictions expressed as a percentage of reported crime show the extent to which crime which is reported, results in a criminal conviction. Although sexual offence convictions expressed as percentage of reported crime increased to 15% in 2016/17 compared to 9% in 2006/7 and 8% in 1996/7, these improvements, must be contrasted with drug-related crimes, where this ratio was 59% in 2016/17. All other serious crime categories show a decrease in the number of convictions, with common assault, assault with intent to commit grievous bodily harm, and malicious damage to property showing the largest reductions in number of convictions (66%, 63% and 58% respectively) over 10 years, despite recorded crime not having dropped a similar percentage (reductions in reported crime over 10 years for these offences were of 21%, 16% and 15% respectively). What the data cannot tell us, is what proportion of drug-related convictions recorded relate to mere possession of dagga for private use. If many drug-related convictions in the past were indeed of this type, then it can be expected that total convictions are likely to drop. The extent of the drop will inform the extent to which resources were being expended on these convictions, rather than on other more pressing priorities. In addition to an impact on number of convictions, the NPA’s much-vaunted conviction rate in 2016/17 of 94%, up from 82% in 2002/3, may also be affected. This high rate is largely determined by the 96% conviction rate in the District Courts, which hear the majority (92%) of cases – including less serious drug-related crime cases. Such convictions are relatively easy to obtain as there is no citizen-complainant and verdict may often be by way of guilty plea. Thus the very high conviction rate of 96% in the District Courts may also be affected, as the relative proportion of perhaps more tricky cases rises in the absence of mere possession of dagga for private use cases. Admissions of sentenced persons to prison may not be affected by the ruling to the extent that some may think. Some drug-related convictions, especially those of mere possession, result in a fine only or time served awaiting trial. The number of admissions on remand (awaiting trial), however, is more likely to be affected, especially in prisons which serve police stations which have been policing drug-related crime vigorously. Cape Town Central alone records almost 3,000 drug-related crimes per year, or more than 50 per week. These result in arrests, and as we have seen, some six out 10 drug-related crime reports result in a conviction. Even if not convicted, many of those arrested will spend some time awaiting trial, especially if they cannot afford bail; those arrested in Cape Town will usually go to Pollsmoor Remand Detention Facility (RDF), currently at close to 140% capacity. At any moment, around one in 12 in Pollsmoor RDF are there for drug possession (of any drug). If a significant proportion of these drug possession detainees were arrested in relation to small amounts of dagga for private use, numbers on remand may well reduce as a result of the judgment. The massive increase in drug-related convictions has occurred at the same time as the upswing in the number of murders reported in South Africa. Arresting, remanding and convicting those accused of these offences has not been associated with reduced murder, the best indicator of violent crime. This strongly suggests that these drug-related arrests and convictions have not had a violence prevention effect. It is time for the NPA to further build on its achievements in relation to aggravated robbery and sexual offences, by targeting crimes and people whose imprisonment is more likely to result in an improvement in violence trends. A drop in the number of convictions and the conviction rate may well be the initial result – reprioritisation may take time. DM Jean Redpath is a researcher with Africa Criminal Justice Reform at the Dullah Omar Institute, University of the Western Cape