The Constitutional Court has ratified a High Court order declaring sections of the Drugs & Drug Trafficking Act as unconstitutional because it criminalises the use and possession of cannabis by a child, reports GroundUp.

The court has suspended the order for 24 months to give Parliament time to finalise a legislative reform process.

During this period, the court has unanimously ruled no child may be arrested or prosecuted, or even ‘diverted’ for contravening the relevant provisions of the Act.

Instead, the court said, any child apprehended may be referred to civil processes, such as those found in the Children’s Act.

Where a court has already convicted a child, the criminal record can, on application, be expunged.

The matter came before the court following an order by Gauteng High Court (Johannesburg) Judges Ingrid Opperman and Ratha Mokgoathleng in 2020, who found that criminal penalties should not be imposed on children when, following the Constitutional Court judgment Prince v Minister of Justice and Constitutional Development, the same was not true for adults.

The application was launched by the Centre for Child Law.

It was ultimately not opposed by various government respondents, including the DPP (Johannesburg) and the Ministers of Justice & Correctional Services, Social Development, Health, Basic Education and Police.

Judge Nonkosi Mhlantla, who penned the judgment, said the case was not about condoning the use and possession of cannabis by a child and none of the parties had argued such.

She said the Prince matter had legalised the use, possession and cultivation by an adult for private and personal consumption.

It had carved out a legal space for adults but the fact that it was not extended to children was an oversight.

Full GroundUp report

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