By Gaby Ndongo
The Constitutional Court (ConCourt) on 29th September 2022 handed down a unanimous judgement about the unconstitutionality of criminalising children (persons under the age of 18) for possessing and/or consuming cannabis, recommending the integration of non-punitive, rehabilitative alternatives.
These alternatives – which are in the Children’s Act 38 of 2005 and the Prevention of and Treatment for Substance Abuse Act 70 of 2008 – should be part of the current social systems and replace criminal sanctions of arrest except as a measure of last resort, prosecution and/or residential diversion programme.
In other words, “prevention, harm-reducing and dependence treatment services and other alternatives” should replace “punitive or repressive drug control policies”, the ConCourt, specified in a statement. However, “it is illegal for a child to use and/or possess cannabis” and “it does not mean that a criminal sanction is never permitted.”
This judgement was based on the best interests of the child principle and in response to “an application for confirmation of an order of constitutional invalidity made by the High Court of South Africa, Gauteng Local Division, Johannesburg,” read the statement.
It added: “The High Court declared section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 (Drugs Act) unconstitutional to the extent that it criminalises the use and/or possession of cannabis by a child.”
Although the judgement does not have a retrospective effect, it allows for those prosecuted and convicted under section 4(b) of the Drugs Act to apply for the complete removal of their criminal records.
According to the High Court’s judgement handed down on 5th February 2019, section 41 of the Child Justice Act does not allow for compulsory residence for a schedule one offence. The Court further “issued a moratorium pending the law reform, prohibiting the arrest and/or prosecution and/or diversion for contravention of the impugned provision”.
After 12 months since the court handed down the judgement, the Centre for Child Law (CCL) filed a confirmation application to the ConCourt, becoming an applicant. CCL submitted such an application due to its interest in the High Court’s judgement and as the respondents did not table it.
The first respondent was Johannesburg’s director of public prosecutions, who was an applicant in the High Court while CCL occupied a position of amicus curiae (friend of the court) and so, the organisation did not participate in the proceedings.
Other respondents were (second) the justice and correctional services minister, (third) social development minister, (fourth) health minister, (fifth) basic education minister, and (sixth) police minister. All of the respondents did not challenge the application.
CCL and the justice and correctional services minister were the only parties involved in the ConCourt proceedings. The ConCourt assigned the applicant’s costs to the justice minister. YC
Reviewed by Jeremie Ndongo. Feature image by Crystalweed cannabis on Unsplash.