Dagga use by children decriminalised

THE Constitutional Court yesterday decriminalised the possession and use of dagga by children.

In 2020, the South Gauteng High Court declared provisions of the Drugs and Drug Trafficking Act unconstitutional in so far as they criminalise the possession and use of cannabis by children.

The Centre for Child Law asked the Concourt to confirm the high court order, which it has now done.

In 2019, the Concourt decriminalised private use of cannabis by adults.

However, in that case the Concourt did not address the criminalisation of its use by children.

This resulted in children being treated as criminals for conduct which was no longer a crime for adults.

Although the apex court confirmed that children using cannabis should not be dealt with under the criminal justice system, it made it clear that it did not condone the use of this substance by children.

The court agreed with the stance by the Centre for Child Law that these children should instead receive treatment as provided for under the Children’s Act.

Justice Nonkosi Mhlantla, who wrote the Concourt judgment, said in her opening remarks: “As a point of departure, I emphasise that this case does not concern the legalisation and condonation of the use and/or possession of cannabis by a child.”

She stressed that none of the parties before the court or during the previous hearing in the high court argued that a child should be permitted by law to use and/or possess cannabis. “Rather, this matter concerns the repercussions of the use and/or possession of cannabis by a child.

“In other words, the question to be answered is this: is the criminal justice system the appropriate mechanism to respond to the use and/or possession of cannabis by a child or are social systems designed to protect and promote the rights of the child more suitable,” she said.

The judge remarked that a child was precious and deserved special protection under the law.

The court found that there were less restrictive means available to protect a child from cannabis use and/or exposure than criminalising a child for this.

Judge Ingrid Opperman in 2020 placed a moratorium on the arrest or prosecution of children in relation to the use or possession of cannabis.

She made it clear at the time that the selling or provision of cannabis to children remained an offence.

Justice Mhlantla said the preamble to the Children’s Act stated unambiguously that the legislation was enacted to protect children’s rights as contemplated in the constitution.

It is, therefore, the primary piece of legislation dealing with the numerous rights of the child and providing for his or her protection within society.

The law requires that all levels of the state co-operate as “competing social and economic needs exist”.

It also provides for intervention programmes such as psychological, rehabilitation and therapeutic programmes for children to divert children away from the child- and youthcare systems and the criminal justice system, the court said.