The Constitutional Court has ratified a High Court order declaring sections of the Drugs & Drug Trafficking Act as unconstitutional because it criminalises the use and possession of cannabis by a child, reports LegalBrief.
The court has suspended the order for 24 months to give Parliament time to finalise a legislative reform process, During this period, the court has unanimously ruled no child may be arrested or prosecuted, or even “diverted” for contravening the relevant provisions of the Act, reports GroundUp. Instead, the court said, any child apprehended may be referred to civil processes, such as those found in the Children’s Act. Where a court has already convicted a child, the criminal record can, on application, be expunged.
The matter came before the court after an order by Gauteng High Court (Johannesburg) Judges Ingrid Opperman and Ratha Mokgoathleng in 2020, who found that criminal penalties should not be imposed on children when, following the Constitutional Court judgment Prince v Minister of Justice and Constitutional Development, the same was not true for adults.
The application was launched by the Centre for Child Law. It was ultimately not opposed by various government respondents, including the DPP (Johannesburg) and the Ministers of Justice & Correctional Services, Social Development, Health, Basic Education and Police.
Judge Nonkosi Mhlantla, who penned the judgment, said the case was not about condoning the use and possession of cannabis by a child and none of the parties had argued such. She said the Prince matter had legalised the use, possession and cultivation by an adult for private and personal consumption. It had carved out a legal space for adults but the fact that it was not extended to children was an oversight.
Although the court confirmed that children using cannabis should not be dealt with under the criminal justice system, it made it clear it did not condone the use of this substance by children, reports Cape Times. The court agreed with the stance by the Centre for Child Law that these children should instead receive treatment as provided for under the Children's Act.
Mhlantla said in her opening remarks: “As a point of departure, I emphasise that this case does not concern the legalisation and condonation of the use and/or possession of cannabis by a child.”
She stressed that none of the parties before the court or during the previous hearing in the High Court, argued that a child should be permitted by law to use and/or possess cannabis.
“Rather, this matter concerns the repercussions of the use and/or possession of cannabis by a child. In other words, the question to be answered is this: is the criminal justice system the appropriate mechanism to respond to the use and/or possession of cannabis by a child or are social systems, designed to protect and promote the rights of the child more suitable?’ she said.
The judge remarked that a child was precious and deserved special protection.
The court found that there were less restrictive means available to protect a child from cannabis use and/or exposure than criminalising a child for this. The Mercury reports Opperman in 2020 placed a moratorium on the arrest or prosecution of children in relation to the use or possession of cannabis. She made it clear at the time that the selling or provision of cannabis to children remained an offence.
Mhlantla said the preamble to the Children’s Act stated unambiguously that the legislation was enacted to protect children’s rights as contemplated in the Constitution. It is, therefore, the primary piece of legislation dealing with the numerous rights of the child and providing for his or her protection within society. The law requires that all levels of the state co-operate as ‘competing social and economic needs exist’.
It also provides for intervention programmes such as psychological, rehabilitation and therapeutic programmes for children to divert children away from the child- and youth-care systems and the criminal justice system, the court said.
Judgment
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GroundUp article – Children caught using cannabis will no longer be criminally prosecuted (Creative Commons Licence)
The Mercury PressReader article – Dagga use by children decriminalised (Open access)
See more from MedicalBrief archives:
ConCourt reserves judgment on decriminalisation of child use of cannabis
Gauteng judgment may transform treatment of children who use drugs
Marijuana’s decriminalisation in America and South Africa – Implications