The Centre for Child Law has brought an application before the Constitutional Court for the confirmation of an order granted by the Gauteng High Court Local Division declaring a section of the Drugs and Drug Trafficking Act unconstitutional since it criminalises the use and/or possession of cannabis by a child.

In terms of the Drugs and Drug and Trafficking Act, for an adult, use or possession of cannabis for his/her personal consumption in private does not constitute a criminal offence – but it does for children who are therefore subject to criminal proceedings in terms of the Child Justice Act.

The other respondents in the matter are the ministers of justice and correctional services, social development, health, basic education and police, who support the application and agree that the impugned section is unconstitutional.

This application was brought in terms of  16.4 of the Constitutional Rules for confirmation of the order granted by the High Court and declaring Section 4(b) of the Drug and Drug Trafficking Act 140 of 1992 (DDT Act) unconstitutional insofar as it criminalises the use and/or possession of cannabis by a child.

Lithalethemba Stwayi, an attorney with the Centre for Child Law (CCL), said in her founding affidavit that it is vitally important to stress, at the outset, and for the avoidance of doubt, that this matter does not concern whether or not children should be allowed to use and/or possess cannabis – rather it deals exclusively with the appropriate response to such behaviour.

The application seeks to provide protection to children under the age of 18. The CCL and ministers are of the firm view that a criminal justice response is wholly inappropriate and that less-restrictive means are available to address this type of behaviour by children.

The matter began when it was referred to the high court as a special review at the insistence of acting senior magistrate AK Khan of the Krugersdorp Magistrates’ Court.

Four children tested positive for cannabis at school during 2018. The parents and the pupils appeared before the Krugersdorp Magistrates’ Court which concluded that the children would undergo diversion programmes. However, the children did not comply with the conditions of the programmes.

The children were then referred to the Department of Social Development and assessed by probation officers. A recommendation was that the children be subjected to a compulsory residential diversion programme for an unspecified period.

The recommendation was placed before the magistrate and it became a court order. However, on 5 February 2019, this order was referred to the high court which ruled that Section 41 of the Child Justice Act did not permit compulsory residence for a schedule I offence. The order was set aside and the children were released.

The high court remarked that the matter raised questions about the propriety of the proceedings, in light of the Constitutional Court’s judgment in Minister of Justice and Constitutional Development vs Prince where the court held that criminalising the use and/or possession of cannabis in private by an adult person for his/her own consumption was inconsistent with Section 14 of the Constitution, which concerned the right to privacy.

The CCL then entered the arena and implored the high court to consider whether Section 4(b) of the DDT Act was unconstitutional.

The high court judgment delivered on 31 July 2020 reads:

1. It is declared that Section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992, as amended, is inconsistent with the Constitution of South Africa, 1996, and invalid to the extent that it criminalises the use and/or possession of cannabis by a child;
2. Pending the competition of the law reform process to correct the constitutional defects set out, no child may be arrested and/or prosecuted and/or diverted for contravening the impugned provision;
3.     The order in paragraphs 1 and 2 hereby referred to the Constitutional Court in terms of Section 172(2) of the Constitution.

Stwayi’s contention reads: “The high court was plainly correct in its findings. There can be little doubt that the criminalisation of children found using or [possessing] cannabis not only violates several of their constitutional rights, but most importantly, is a disproportionate response to what is evidently a public health matter.”

Justice Minister Ronald Lamola, in papers supporting the application, reiterated that in respect of the interpretation of the rights of children, a court should take international and regional law into account.

South Africa has ratified the International Covenant on Civil and Political Rights, 1966 and the United Nations Convention on the Rights of the Child, 1989, in respect of international law, and the African Charter on Human Rights and People’s Rights, 1981.

Lamola further points out that the high court also found that Section 4(b) of the DDT Act limits the constitutional rights of children, including their rights to equality, the best-interest principle and their rights not to be detained.

The minister’s submission before the court is confined to the constitutionality of the offence of the possession and/or use of cannabis by children. In it he says no jurisdiction exists for the continued criminalisation of the use and/or possession of cannabis in respect of children to the extent that such measures were aimed at addressing drug abuse by children.

The minster wants the court to make the following orders:

1.     It is declared that with effect from the date of handing down of this judgment the provisions of Section 4(b) of the Drugs and Drug Trafficking Act 140 0f 1992 read with Part 111 of Schedule 2 of the act and the provisions of Section 22A(9)(a)(i) of the Medicines and Related Substances Control Act 1011 of 1965 read with schedule 7 of GN R509 of 2003 published in terms of Section 22A(2) are inconsistent with the right of privacy entrenched in Section 14 of the Constitution and therefore invalid to the extent that they make the use or possession of cannabis in private by an adult person for his or consumption in private a criminal offence;
2.     That operation of the above is hereby suspended for a period of 24 months from the date of the handing down of this judgment to enable Parliament to rectify the constitutional defects;
3.     During the period of suspension of the operation of the order of invalidity.

The minister also conceded that Section 4(b) of the DDT Act is unconstitutional as it criminalises the use and/or the possession of cannabis by children solely on account of their age, and was and is of the view that there exist less restrictive, child-centred means to address drug abuse by children.

Minister of Social Development Lindiwe Zulu, in her submission, took the position that prevention, treatment, rehabilitation and reintegration programmes are more appropriate, efficient and less-restrictive means of addressing substance abuse among children.

“The overall approach by the Department of Social Development is that substance abuse requires treatment and rehabilitation and not criminalisation, as criminalisation may potentially disadvantage children later in life, as a result of their criminal record, creating a large pool of unemployed people,” the minister contends.

In papers, Zulu confirmed that she has established at least one public treatment centre in each province for the reception, treatment, rehabilitation and skills development of inpatient and outpatient users and that these centres are divided into facilities for adults and for children.

Basic Education Minister Angie Motshekga states in her submission that there is no evidence suggesting that the criminal justice system is the correct deterrent for drug abuse, and argues that exposing children to this system, including prison, may well draw them into drug use.

She also highlights that Section 8A(14) of the Schools Act is of crucial importance, which provides that no criminal proceedings may be instituted by the school against a pupil who has tested positive in respect of a drug test conducted in terms of subsection (8).

“The purpose of the test is therefore not to place children or learners into the criminal justice system, but rather to ensure that they receive the necessary help and assistance in the event that they are found to have contravened the act.

“Drug testing in schools should not be used as a tool to punish or catch naughty kids and should be adopted only once all other avenues have been exhausted,” Motshekga said in papers.

Police Minister Bheki Cele submits that the processes and mechanisms provided for in the Children’s Act and the Prevention of and Treatment for Substance Abuse Act, are available to all children – both inside and outside the child justice system – who are addicted to any dependence-producing substances, in appropriate circumstances.

Cele is of the view that the high court was correct in declaring Section 4(b) of the Drugs Act constitutionally invalid to the extent that it criminalises the possession and/or use of cannabis in small quantities by children.

Supporting the confirmation of that court’s declaration, the minister is mindful that the extension of the interim relief to children in the cannabis judgment will require various considerations which are best dealt with through legislative reform and fall within the functions of Parliament.

Since the declaration and invalidity in the cannabis judgment and the subsequent declaration of invalidity by the high court with the support of the police minister, the legislature developed the Cannabis for Private Purposes Bill (B19-2020) which was introduced into Parliament on 1 September 2020. Public hearings on the bill took place from 31 August to 2 September 2021 and a summary of the comments were presented to the Portfolio Committee on Justice and Correctional Services on 23 and 24 November 2021.

The bill seeks to remove cannabis completely from the purview of the Drug Act and aims to regulate all aspects thereof.

“The offence of the use/and or possession of cannabis by children in Section 4(b) of the Drugs Act is regulated in terms of the bill and the use and/or possession of cannabis by children is no longer criminalised.

“Additionally, in the schedule to the bill, the Child Justice Act is amended in various ways so as to ensure that the offences in question are subject to a level one diversion as contemplated in Section 53(2)(a) of the Child Justice Act, while clause 8 provides for the expungement of criminal records of persons who were convicted of the use or possession of cannabis,” the minister’s submission reads.

For these reasons, the minister submitted that the confirmation of the high court’s declaration of invalidity should be suspended for 18 months to afford the government and the legislature an opportunity to finalise the current legislative processes that are already under way to cure the invalidity.

An important distinction

The CCL’s Stwayi pointed out that just because cannabis is decriminalised does not mean it is legalised, and children who smoke it will still need interventions such as the ones provided by the Department of Social Development, including investigations and placement in a rehabilitation centre if necessary.

In addition, Stwayi said, dealing or selling cannabis is still a crime for adults as well as children.

Judgment in the matter has been reserved. DM