Cape Town - The Constitutional Court has reserved judgement on an application to review the decriminalisation of cannabis use by children.
This comes after the Centre of Child Law pointed out that the way in which children are being dealt with in the criminal justice system is not the correct response for children who use cannabis and the centre suggested that more emphasis should rather be placed on treating children for drug dependency rather than criminalising and incarcerating them.
In 2020, the Johannesburg High Court declared provisions of the Drugs and Drug Trafficking Act unconstitutional 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 the Concourt did not address the criminalisation of its use by children
Researcher and lawyer at the Centre for Child Law, Isabel Magaya, said that the way in which children are being dealt with in the criminal justice system does not align with section 3(b) of the Child Justice Act 75 of 2008 which states that “a child must not be treated more severely than an adult would have been treated in the same circumstances”.
“According to the High Court, the judgement is not about whether or not children should be allowed to use or have cannabis in their possession, but rather about the appropriate response to such possession – and whether or not the criminal justice system is the correct forum to deal with children using addictive substances.”
“The significance of this case is that it establishes and underscores that the criminal justice system is not the correct forum for helping children who use cannabis. Furthermore, the case highlights that the law should not treat children harsher than it does adults for the same offence – thus creating ’status offences’,” said Magaya.
After the hearing on Thursday, spokesperson for the Concourt, Mmabatho Ngobeni said that the judgement has been reserved and a judgement hand down notice will be issued.
Fair Independent Cannabis Association (FICA) chairman Sinenhlanhla Mnguni mentioned that the seriousness of the matter undoubtedly speaks volumes and the Constitutional Court should emphasis a clear stance against any criminal prosecution of children for the use and possession of cannabis
“The fact that children are still prosecuted for an act which has been decriminalised for adults, presents a dangerous narrative. The Constitutional Court should emphasis a clear stance against any criminal prosecution of children for the use and possession of cannabis by welcoming provisions which provide for more appropriate responses and consequences for children partaking in the aforementioned acts.
“FICA is of the view that although the steps which are being taken towards the decriminalisation of cannabis in South Africa will prove to be economically fruitful and are welcomed by many stakeholders who possess the knowledge of its potential, we are of the strong belief that serious consideration must be given in the process of establishing proper regulation of cannabis in South Africa, with special recognition and implementation of measures which will ensure the protection and education of children instead of throwing children into the deep and dark end of our criminal justice system,” said Mnguni.
Magaya added that it is important to note that the centre is not supporting or promoting the use or sale of cannabis by children, they are, however, of the view that the criminalisation of children and their exposure to the criminal justice system does more harm than good.
“We are of the view that the children should receive the support of parents, communities and the support already provided by certified social welfare services which will ensure that the children receive the rehabilitative programmes needed, having taken their individual needs into account.
“The aim of this approach is to avoid children being exposed to the brutalising effect of the criminal justice system that does not have the necessary mechanisms to properly deal with cannabis dependency,” said Magaya