A 16-year-old Johannesburg schoolboy should never have been jailed after testing positive for cannabis during a school drug test, a court has found, according to the Sunday Times. Instead, the pupil from a school on Johannesburg’s West Rand spent more than two months in a juvenile corrections centre.

He was freed in February when the Gauteng High Court (Johannesburg) ruled his incarceration for 77 days was unlawful. The ruling revealed the parlous handling of his case and that of three other boys, finding that an unlawful application of an ‘informal diversion programme’ had landed them behind bars.

With nearly 7 000 children undergoing diversion programmes last year and this coming under the spotlight, the Centre for Child Law went to court to ensure that for children accused of minor offences, the punishment should fit the crime.

Judge Ingrid Opperman said a hearing into why the boy was absent from his diversion programme, a pivotal process in the Child Justice Act, was never held.

Moreover, Opperman found that the nature of the boy’s offence should never have landed him in custody and raised the question as to whether a crime had been committed at all, given the decriminalising of cannabis last year.

Lithalethemba Stwayi, of the Centre for Child Law, said the organisation deemed what had happened a result of the incorrect interpretation or application of the law.

‘Detention for children should be a … measure of last resort,’ she said.

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