Criminalising children for cannabis use unconstitutional – ConCourt

Criminalising children for cannabis use unconstitutional – ConCourt

The Constitutional Court made quite a startling ruling regarding the use and/or possession of cannabis by a child.

A section in the Drug Trafficking Act is inconsistent with the Constitution

In a statement, the ConCourt stated that Section 4(b) of the Drug and Drug Trafficking Act was inconsistent with the Constitution due to it criminalising the use and/or possession of cannabis by a child.

The matter stems from a special review concerning four children who tested positive for cannabis during a school-sanctioned drug test. The children were brought before the Krugersdorp Magistrate’s Court and were ordered to undergo compulsory diversion programmes.

Later, it was revealed that all four children failed to comply with the conditions of the diversion programme. Probation officers from the Social Development Department recommended that the children be committed to a compulsory residential diversion programme for an unspecified period.

The Centre for Child Law brought the matter against the NPA, Justice Minister, Health Minister, Police Minister, Basic Education Minister and Social Development Minister. The CCL submitted that the Constitutional Court in the Prince-judgement excluded children from the protection of the judgement and therefore the ‘impugned provision violated the child’s right to equality’.

The judgement does not permit a child to use/possess cannabis

The Prince-judgement legalised the use, cultivation, possession and use of cannabis by an adult in private for personal consumption.

The Constitutional Court noted that the legalisation of private possession and/or use of cannabis by an adult does not require the same for a child but rather decriminalisation. In a unanimous decision, the Constitutional Court found that cannabis use is a social problem as opposed to one for the criminal justice system.

The Constitutional Court reiterated that this judgement does not permit a child to use and/possess cannabis without consequence but provides that such use and/or possession must be met with social response,” the statement read.

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