Case   CCT210/21
[2022] ZACC 35

Hearing Date: 03  March 2022

Judgement Date: 29 September 2022

Post Judgment Media Summary

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On 29 September 2022 at 10h00, the Constitutional Court handed down judgment in an application for confirmation of an order of constitutional invalidity made by the High Court of South Africa, Gauteng Local Division, Johannesburg (High Court). The High Court declared section 4(b) of the Drugs and Drugs Trafficking Act (Drugs Act) unconstitutional to the extent that it criminalises the use and/or possession of cannabis by a child.

This matter stems from a special review concerning four minor children who tested positive for cannabis during a school-sanctioned drug test. The four children were brought before the Magistrates’ Court in Krugersdorp on allegations of being in possession of cannabis. and thereby committing an offence in terms of Schedule 1 of the Child Justice Act. In the Magistrates’ Court, agreements admitting the children to participate in a diversion programme were concluded between the parents and the State and these were made orders of Court. It later transpired that the four children had failed to comply with the conditions of the diversion programme. Thereafter, the four children were referred to the Department of Social Development to be assessed by probation officers, who recommended that the children be committed to a compulsory residential diversion programme for an unspecified period. These recommendations were placed on record in the Magistrates’ Court and were implemented through an order of court.

The orders of the Magistrates’ Court subjecting the children to a compulsory residential diversion were referred by the Acting Senior Magistrate to the High Court for an urgent special review. On 5 February 2019, the High Court handed its judgment and held that section 41 of the Child Justice Act did not permit compulsory residence for a Schedule 1 offence. It further held that the Magistrates’ Court did not comply with section 58(2) of the Child Justice Act and, therefore, the orders of the Magistrates’ Court were set aside. The four children were immediately released from the residential diversion programme centres. Additionally, the High Court remarked that the matter raised questions about the legality of the proceedings, in the light of the Constitutional Court’s judgment in Minister of Justice and Correctional Development v Prince (Prince).

After the review application was concluded, the Acting Senior Magistrate brought to the attention of the High Court that there was a special diversion project managed by the Senior Prosecutor in Johannesburg which subjected children in similar circumstances to compulsory residential diversion programmes. As a result, the High Court issued a rule nisi calling upon all affected parties to show cause why an order directing an audit of all correctional facilities that detained children in terms of section 41 of the Child Justice Act should not be made final. After receiving submissions from various parties, the High Court delved into the question of the constitutionality of section 4(b) of the Drugs Act to the extent that it criminalises the use and/or possession of cannabis by a child. On 31 July 2020, the High Court handed down judgment, in which it held that because Prince does not apply to children, children are left in a position where they are treated as criminals and criminally prosecuted for behaviour whereas adults are not held criminally liable. The High Court held that section 4(b) creates a “status offence” and, as a consequence, was constitutionally indefensible. The High Court further held that the impugned provision singles out the child and, thus, amounts to unfair discrimination, and there are less restrictive means to advance government’s legitimate purpose of protecting the child. In addition, the High Court held that criminalising cannabis-related offences when concerning a child is not in the best interests of the child. In addition, the High Court held that the right not to be detained except as a measure of last resort was also infringed. In the result, the High Court declared section 4(b) of the Drugs Act to be inconsistent with the Constitution to the extent that it criminalises the use and/or possession of cannabis by a child. The High Court also issued a moratorium pending the law reform, prohibiting the arrest and/or prosecution and/or diversion for contravention of the impugned provision.

Following the High Court’s decision, the applicant, Centre for Child Law (CCL) lodged a confirmation application in the Constitutional Court. The CCL was not a party before the High Court, but was invited to participate as amicus curiae. The applicant brought this application after 12 months had passed since the order of the High Court as it had sufficient interest in the matter and also when it became clear that none of the respondents were keen on approaching the Constitutional Court. The first respondent is the Director of Public Prosecutions, Johannesburg and was the applicant in the High Court. The second to sixth respondents are: the Minister of Justice and Correctional Services; the Minister of Social Development; the Minister of Health; Minister of Basic Education; and the Minister of Police, respectively. None of the respondents are opposing this application. Only the second respondent and the applicant participated in the proceedings before the Constitutional Court.

The CCL submitted that the Constitutional Court in Prince excluded children from the protection of the judgment; therefore, the impugned provision violated the child’s right to equality. Further it averred that, the criminalisation of the possession and/or use of cannabis by a child did not satisfy South Africa’s international obligations of protecting children from the dangers of drug use. The CCL submitted that the criminalisation of the use and/or possession of cannabis by a child does not protect the child from exposure to drugs and dangers of drug abuse but rather runs the risks of exposing the child to more serious forms of drug abuse. In addition, it contended that the criminalisation has proven to be an ineffective preventative measure, instead, it negatively impacts a child’s constitutionally enshrined rights to dignity, healthcare, and social services as well the child’s best interest.

The Minister of Justice conceded that the impugned provision is unconstitutional and that less restrictive, specifically child-centred measures to address drug abuse by children, should be implemented. The Minister submitted that the impugned provision creates an unfair distinction between adults and children, which is a status offence. The Minister contended that the criminalisation of possession and/or use of cannabis by a child should not be continued because it infringes on the child’s section 28(1)(g) and (2) rights. The Minister thus supported the application for the confirmation of the declaration of invalidity.

In a unanimous judgment penned by Mhlantla J, the Constitutional Court held that this matter engages its jurisdiction as a declaration of invalidity must be considered by this Court before it can have any effect. The Court considered three issues and these were: (a) whether the Court should follow the same approach in Prince in considering the constitutional invalidity of section 4(b) of the Drugs Act to the extent that it criminalises the use and /or possession of cannabis by a child; (b) the impact of criminalisation on a child; and (c) whether the criminalisation places any limitation on a child’s right, and if so, whether the limitation is justified in terms of section 36 of the Constitution.

The Court remarked that the matter before it was about the consequences of the use and/or possession of cannabis by a child and whether those consequences should be located in the criminal justice system which is different from what Prince decided. Prince dealt with the use and/or possession of cannabis by an adult. The Constitutional Court noted that the legalisation of private possession and/or use of cannabis by an adult does not require the use and/or possession of cannabis by a child also to be legalised but rather that it must be decriminalised. Moreover, the reasoning in Prince should not be imported to this judgment without cognisance of the difference between an adult and a child. 

Accordingly, the Constitutional Court held that, it is illegal for a child to use and/or possess cannabis; however, such a child cannot be arrested, prosecuted and/or sent to a residential diversion programme for contravening the impugned provision. The Constitutional Court also stated that the matter before it is not an extension of Prince in relation to children and, as a result, the Court cannot make a determination through the lens of status offence. Consequently, the Court considered the recourse of the best interests of the child principle in determining the constitutionality of the impugned provision.

In considering the best interests of the child, the Constitutional Court highlighted that the criminalisation, and/or prosecution of possession and/or use of cannabis by a child has adverse effects and exposes the child to harsh consequences of the criminal justice system. The Court held that an appropriate response that recognises the child’s best interests should be located in social systems as opposed to the criminal justice system. In addition, the Court remarked that the State has a duty in terms of international law obligations to protect the interests of the child by placing prevention, harm-reducing and dependence treatment services and other alternatives to punitive or repressive drug control policies. Therefore, the Constitutional Court held that there is a need and an obligation to decriminalise the use and/or possession of cannabis by a child and implement non-punitive, rehabilitative alternatives to prevent children from using cannabis.

Another issue the Constitutional Court dealt with is the right of children not to be detained except as a measure of last resort. The Court held that a compulsory residential diversion programme is not one of the diversion options available to a prosecutor in terms of section 53 of the Child Justice Act for a Schedule 1 offence. Therefore, the Magistrates’ Court erred when making an order subjecting the four children to residential diversion programmes. Moreover, that there are risks that will have an impact on a child’s section 28(1)(g) right should the detention be an available option to remedy the possession and/or use of cannabis by children. Thus, an alternative appropriate option must be adopted. The Court, however, said that it does not mean that a criminal sanction is never permitted but rather suggested that if there is an alternative to criminal sanctions that alternative must be thoroughly considered. The Constitutional Court agreed with the High Court and held that children are vulnerable to stigmatisation and therefore imposing criminal sanctions for possession and/or use of cannabis by a child infringes on the child’s right to dignity.

In its analysis on the limitation of the child’s section 28 rights, the Court held that the extent of the limitation of the child’s rights is far-reaching and that the criminalisation has disproportionate effect on children, as children are afforded less protection by the law and may end up with criminal records while adults are protected by the outcome of Prince. In the result, the Court held that the criminalisation of the use and/or possession of cannabis by a child does not serve the intended purpose of protecting a child and that there are less restrictive means that are appropriate to respond to children using or possessing cannabis. The Court held that these less restrictive measures are found in the Children’s Act and the Prevention of the Treatment for Substance Abuse Act.

In the result, the Constitutional Court held that the limitation of the child’s section 28 and section 10 rights is unreasonable and unjustifiable and therefore, section 4(b) of the Drugs Act does not pass the constitutional muster. This Court confirmed the declaration of invalidity made by the High Court. The Court further held that the order of declaration of invalidity will not have a retrospective effect to finalised matters; however, it made provision for an expungement of criminal records upon application for those who had been prosecuted and convicted under section 4(b) of the Drugs Act for the use and/or possession of cannabis as a child. The Court ordered the Minister of Justice to pay the applicant’s costs.

Lastly, the Constitutional Court reiterated that this judgment 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. Furthermore, the scope of this judgment is limited to the use and/or possession of cannabis by child and no finding is made on the appropriateness of criminalising the use and/or possession of other substances by a child. The Court did not decide any issue as to the criminal liability of children who might use their possession of cannabis to deal in cannabis or otherwise induce others to use cannabis. Any adult who utilises or implores a child to be in possession of cannabis or to use cannabis can be held criminally liable.

The Full judgment  here