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South Africa: Court rules that it’s unconstitutional to criminalize cannabis use by children

Court hears children are languishing for months in detention for trivial offences

Children found guilty of trivial offences, including the possession or use of cannabis, may not be incarcerated, the Johannesburg High Court has ruled.

The question before Judges Ingrid Opperman and Ratha Mokgoathleng was whether criminal penalties should be imposed on children when, following the Constitutional Court judgment Prince v Minister of Justice and Constitutional Development, the same was not true for adults.

“It is a narrow question regarding decriminalisation of its [cannabis] use and possession so that other, more appropriate assistance, can be given to children,” the judges said.

Court-ordered audits into youth detention centres have revealed that dozens of children were languishing in them, not only for dagga related offences, but other trivial offences.

One found guilty of stealing goods worth R200 had been sent for compulsory residence for four months.

“If an adult first offender had committed the offence, she or he would most certainly not have been incarcerated at all,” the judges said.

In other “particularly egregious” examples, a child was ordered to “serve” one year for malicious damage to property valued at R300. This after he broke a window and threw bottles at his stepfather.

Another broke a window to gain access to his own home. For this, he was to serve six months.

Another stole a hair clipper valued at R150; he also got six months.

These centres are not “soft options”, the judges said. “They are very structured institutions with fenced environments. Going there involves the deprivation of liberty and being placed with other youthful offenders who have committed more serious offences.”

The matter had its genesis in an urgent review concerning four children from Krugersdorp who had tested positive for dagga at school and had been “diverted” in terms of “onerous standardised court orders” which they did not comply with.

As a result, the local magistrate directed that they be sent for “compulsory residence” at two youth care centres for unspecified periods and their cases were adjourned for six months.

The Johannesburg High Court ordered their immediate release in February 2019.

School drug tests conducted unlawfully

Regarding drug testing at schools, the South African Schools Act made it abundantly clear that the principal must have reasonable suspicion to test, no criminal proceedings may be instituted, the results must remain confidential, and it only authorized disciplinary proceedings.

And yet, evidence suggested that hundreds of learners had been subjected to these tests and as many as 24 had been unlawfully detained in the Krugersdorp area.

“The children alleged to have been guilty of possession of cannabis had spent on average almost five months at one centre. This is exceedingly harsh,” the judges said.

Declaring the drug laws “to the extent that they criminalise the use and possession of cannabis by a child” to be unconstitutional, the judges said they had been informed that there was already a law reform process underway. Pending its finalisation, no child may be arrested or prosecuted for the offence.

They also declared that the Child Justice Act does not permit, under any circumstances, for a child accused of committing a Schedule One offence to undergo any temporary residence.

The judgment is to be sent to the South African Judicial Institute, the national director of public prosecutions, the heads of child youth care centres and the magistrates commission.

All parties, including the Director of Public Prosecutions, the ministers of police, justice, social development, health, basic education and the Centre for Child Law, were quick to emphasize that they were not encouraging children to possess or smoke dagga.