The South Gauteng court ruled on 31 July 2020 that South Africa’s Drugs and Drug Trafficking Act was unconstitutional as it criminalised children’s use and possession of cannabis.
In her judgment, Judge Ingrid Opperman found that while there was a legitimate government purpose to protect children from the use and abuse of cannabis, criminalisation was not an effective strategy.
“Exposure to the criminal justice system is deeply traumatising for children, particularly when there are risks of detention. Criminalisation is also a form of stigmatisation that is both degrading and invasive.
“Efforts should be made to employ strategies that do not criminalise children and instead employ prevention and treatment mechanisms,” the centre, admitted as a friend of the court, said in a statement yesterday.
The issue arose when four children were arrested and brought before the Child Justice Court in Krugersdorp after testing positive for cannabis at their school.
In each case, each child received a diversion order to undergo certain programmes. The children failed to comply with the order and were forced to stay at the Walter Sisulu Youth Care Centre or the Mogale Leseding Child and Youth Care Centre, owned and operated by Bosasa.
The Centre for Child Law argued that a more appropriate approach would be to deal with the child under the Children’s Act or the Prevention of and Treatment for Substance Abuse Act.
In February last year the court held that Schedule 1 offences under the Child Justice Act did not permit for compulsory residence as an option, and ordered the four youths’ immediate release.
But by March this year, children who had allegedly committed Schedule 1 offences were still being diverted by magistrate’s courts for compulsory residence.
“The children alleged to have been guilty of the offence of possession of drugs or cannabis and referred for compulsory residence, had spent on average 4.75 months at the youth care centres.
“This is exceedingly harsh if regard is had in particular to the provisions of section 3(b) of the Child Justice Act, which provides that a child should not be treated more severely than an adult would have been treated in the same circumstances,” the centre said.