Law on children, cannabis ‘should not criminalise’

THE CONSTITUTIONAL Court has reserved judgment on an application to review the decriminalisation of cannabis use by children.

This comes after the Centre for Child Law pointed out that the way in which children were being dealt with in the criminal justice system was not the correct response for children who used cannabis and the centre suggested that more emphasis should 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 it criminalised the possession and use of cannabis by children.

The Centre for Child Law would ask the Constitutional Court to confirm the High Court order.

In 2019, the Constitutional Court decriminalised private use of cannabis by adults. However, the court 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 were being dealt with in the criminal justice system did not align with Section 3(b) of the Child Justice Act 75 of 2008, which stated that “a child must not be treated more severely than an adult would have been treated in the same circumstances”.

Magaya said: “According to the

High Court, the judgment 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’.”

After the hearing on Thursday, Concourt spokesperson Mmabatho Ngobeni said that judgment had been reserved and a judgment hand down notice would be issued.

Fair Independent Cannabis Association (Fica) chairperson Sinenhlanhla Mnguni said the seriousness of the matter spoke 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.”