From this weekend, police can no longer arrest and haul before courts children found in possession of dagga during searches conducted inside and outside school premises.
This follows a judgment delivered by Judge Ingrid Opperman at the South Gauteng High Court in Joburg on Friday.
Judge Opperman declared the Drug Trafficking Act, as it applied to children, unconstitutional.
Her ruling brings children to equal footing with adults regarding the invalidity of the act.
The Constitutional Court ruled in 2018 that the legislation was unconstitutional as it empowered police to arrest adults found in possession of dagga.
The apex court effectively decriminalised the use or possession of dagga by an adult.
Parliament was given 24 months to fix the defects in the act.
Judge Opperman said the Concourt judgment left children “in an invidious position: those who use and/or possess cannabis are treated as criminals and criminally prosecuted for this behaviour whereas their adult counterparts are not”.
This amounted to what was legally termed status offences, a type of law that criminalised actions only for certain groups of people, she said.
“In apartheid South Africa, several such offences existed, these included: the failure of black South Africans to carry a reference book whenever travelling outside of the designated homelands created by the apartheid state”
Judge Opperman said the subjection of children to the criminal justice system for possession of dagga should equally stop.
“Pending the completion of the law reform process referred to in this judgment, to correct the constitutional defects no child may be arrested and/or prosecuted and/or diverted for contravening the impugned provision,” said the judge.
The matter came before Judge Opperman after four children were referred for an unspecified period to two youth care centres that Bosasa operated on behalf of Correctional Services.
Pro-Practicum School, which the four attended, alleged that they tested positive for dagga and handed them over to the courts.
The institution revealed to Judge Opperman that it referred 178 learners to the criminal justice system between 2014 and last year, 24 of which were detained at youth care centres.
Judge Opperman found that the school acted illegally, as the SA Schools Act prohibited the referral of children found in possession of dagga to the criminal justice system.
She heard from the Department of Social Development that the government discouraged the detention of children dependent on substances in Youth Care Centres.
“The overall approach of the department is that substance abuse requires treatment and rehabilitation, and not criminalisation,” said Judge Opperman.
She favoured this approach over criminalisation.
“There can be no debate that exposure to the criminal justice system, generally, is deeply traumatising for children.”
Judge Opperman cautioned against viewing the ruling as condoning the use of dagga by children.
“It needs to be emphasised that neither this court nor any of the respondents (in this matter) encourage nor condone the use or possession of cannabis by children,” she said.
“The selling or provision of cannabis to children remains an offence. The question is whether criminal-type penalties should be imposed on children when adults are not visited with such penalties for the same conduct.”
@BonganiNkosi87