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- The apex court is hearing an application for the confirmation of an order on the constitutional invalidity regarding the possession and use of cannabis by children.
- The Centre for Child Law wants the court to confirm a Gauteng High Court ruling declaring provisions of the Drugs and Drug Trafficking Act unconstitutional to the extent that it criminalises the use and possession of cannabis by a child.
- The High Court had ruled that children found guilty of possession and use of cannabis may not be incarcerated.
The Centre for Child Law wants the Constitutional Court to confirm a Gauteng High Court ruling, declaring provisions of the Drugs and Drug Trafficking Act unconstitutional to the extent that it criminalises the use or possession of cannabis by a child.
The Centre for Child Law argued its case on Thursday. In 2020, the High Court ruled that children found guilty of trivial offences, including the possession or use of cannabis, may not be incarcerated, GroundUp reported.
According to the publication, the judges were faced with whether criminal penalties should be imposed on children when, following the Constitutional Court judgment in Prince vs the Minister of Justice and Constitutional Development, the same was not true for adults.
The matter started when four children from Krugersdorp in Gauteng had tested positive for dagga at school.
The children and their parents appeared before the Krugersdorp Magistrate's Court, where it was agreed that they would undergo diversion programmes.
It, however, later emerged that all four children had not complied with the conditions of the diversion programmes.
The children were then referred to the Department of Social Development, where probation officers assessed them.
It was recommended that the children be subjected to a compulsory residential diversion programme for an unspecified period.
The children were released in February 2019 following a High Court order, which held that section 41 of the Child Justice Act did not permit compulsory residence for a schedule 1 offence.
On Thursday, advocate Morgan Courtenay, for the Centre for Child Law, told the apex court justices the case was not about whether or not children should be allowed to use or possess cannabis. Courtenay said the case was about whether it was constitutionally permissible for children to be subjected to criminal sanctions in order to prevent and deter them from using cannabis.
Courtenay said:
He added that a criminal sanction could not be justified when it came to children under the guise of prevention and deterrence.
He also said that when a child was found in possession of cannabis, the system that must deal with the child was not the criminal justice system.
Courtenay said children had no right, like adults, to have cannabis in their possession, but if they did, it would be up to the "system to determine the reason for that and address the root cause".
Justice Leona Theron asked if the court should take a similar exercise to what it did in the Prince judgment.
She referred to a paragraph which stated that an adult person may use or be in possession of cannabis in private for his or her personal consumption.
Courtenay said the court didn't have to venture that far.
He said:
But Theron said it would then mean children can be in possession of any quantity of cannabis for any purpose.
"Not necessarily," he said.
"The law as it stands still criminalises supply and distribution and sale. If a child is found in possession of however much… then the child can be prosecuted for being in [possession of] that kind of quantity with the intention to obviously deal in that particular drug."
In 2018, the Constitutional Court ruled that the personal use of dagga by adults was not a criminal offence, News24 reported.
"The right to privacy is not confined to a home or private dwelling. It will not be a criminal offence for an adult person to use or be in possession of cannabis in a private space," said acting chief justice Raymond Zondo at the time.
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"The judgment does not specify how many grams of cannabis a person can use or have in private."
That ruling followed a Western Cape High Court judgment that the possession, cultivation and use of dagga for private use was allowed.
The hearing continues.
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