Pretoria - The Constitutional Court will hear arguments on Thursday, for the decriminalisation of the possession and use of cannabis by children.
In 2020, the Johannesburg 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.
The Centre for Child Law will today ask the Constitutional Court to confirm the high court order.
In 2019, the Constitutional Court 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.
The centre said it was hopeful that the Concourt would confirm the high court order and make it clear that children using cannabis or are addicted to it should not be dealt with under the criminal justice system.
Its stance is that these children should instead receive treatment as provided for under the Children’s Act.
While only the Constitutional Court could suspend parts of the drug-related act, Judge Ingrid Opperman in 2020 placed a moratorium on the arrest or prosecution of children in relation to cannabis.
She said that the moratorium, however, did not in any way prevent anyone from making use of the civil process to ensure that a child received help for cannabis use or dependency.
Judge Opperman emphasised at the time that this case concerned the decriminalisation of the use and possession of cannabis among children in a bid to keep them out of the criminal justice system.
She said neither the court nor any of the parties in this matter encourage or condone the use or possession of cannabis by children.
“The selling or provision of cannabis to children remains an offence.
“The question is whether criminal-type penalties should be imposed on children when given recent developments in our law relating to cannabis use by adults are not visited with such penalties for the same conduct,” she said.
The issue arose when four children were arrested and brought before the Child Justice Court in Krugersdorp. They tested positive for the use of cannabis at school.
In each case the child received a diversion order to undergo certain programmes.
These children, however, failed to comply with the order and, as a consequence, were forced to stay at a youth care centre operated by controversial African Global Operations (formerly Bosasa).
The question then arose whether the justice system was the correct forum to deal with these children and others in the same position.
The Centre for Child Law argued that a more appropriate approach would be to deal with children under the Children’s Act or the Prevention of and Treatment for Substance Abuse Act.
According to the centre, emphasis should rather be placed on treating children for drug dependency than criminalising, incarcerating and punishing them, especially when adults in the same position are treated differently.
Justice and Constitutional Development Minister Ronald Lamola, earlier in his written submissions to the court, confirmed there was indisputable evidence that arresting children for the use of cannabis had a negative effect on them.
The minister is of the view that the best interest of the child principle requires that a child-oriented approach should be followed to deal with their drug abuse.
These include drug awareness and educational programmes, drug prevention programmes, treatment and rehabilitation.