Pretoria - The Constitutional Court yesterday decriminalised the possession and use of dagga by children.
In 2020, the South Gauteng High Court declared provisions of the Drugs and Drug Trafficking Act unconstitutional in so far as they criminalise the possession and use of cannabis by children. This has now been confirmed by the Concourt.
The Centre for Child Law asked the Concourt to confirm the high court order.
In 2019, the Concourt decriminalised private use of cannabis by adults.
However, in that case the Concourt did not address the criminalisation of its use by children.
This resulted in children being treated as criminals for conduct which was no longer a crime for adults.
Although the apex court confirmed that children using cannabis should not be dealt with under the criminal justice system, it made it clear that it did not condone the use of this substance by children.
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.
Justice Nonkosi Mhlantla, who wrote the Concourt judgment, 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?”
The judge remarked that a child was precious and deserved special protection under the law.
The court found that there were less restrictive means available to protect a child from cannabis use and/or exposure, other than criminalising a child for this.
Judge Ingrid 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 remains an offence.
Justice 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 Children’s Act is protective in the sense that it recognises the need for support structures for the child – whether that is support in the form of a parent and/or caregiver or social services,” the judge said.
It also provides that a child that is not in need of care and protection can still be subjected to an order of court for treatment, as long as the order does not include a placement.
“This approach is child centred and focused on rehabilitation, rather than punishment.”
In appropriate circumstances, a child can also be declared a child in need of care and protection if it is a child who is addicted to a dependence-producing substance and is without any support to obtain treatment for such dependency.
The court can then order that the child be admitted as a patient.
“This approach is child centred and focused on rehabilitation, rather than punishment,” the court said.
In the cases where children have obtained criminal records in the past for the use or possession of cannabis, the court ordered that they were eligible for the immediate expungement of their criminal records.
If they have problems in this regard, they can approach the high court for assistance.
The court ultimately found that the criminalisation of the use and/or possession of cannabis by a child, whether in private or public, infringes on a child’s rights.
The judge concluded: “I am cognisant of the fact that there is an inherent risk with decriminalisation pertaining to a child and a potential scope for harm if the use and/or possession of cannabis by a child is not met with a social response.
“Therefore, I reiterate the need for a social response to cannabis use and/or possession by a child.”
Pretoria News