Pretoria – In another groundbreaking judgment to protect the rights of children, a judge has decriminalised the use and possession of cannabis by children in our country.
Judge Ingrid Opperman of the Gauteng High Court, Joburg, declared sections of the Drugs and Drug Trafficking Act unconstitutional and invalid where it criminalised the use or possession of cannabis by children.
While only the Constitutional Court could suspend parts of this act, the judge placed a moratorium on the arrest or prosecution of children in relation to cannabis.
She said that the moratorium, however, did not in any way prevent anyone from making use of the civil process to ensure that a child received help for cannabis use or dependency.
Judge Opperman emphasised that this case concerned the decriminalisation of the use and possession of cannabis among children in a bid to keep them out of the criminal justice system. She said neither the court or any of the parties in this matter encourage or condone the use or possession of cannabis by children. “The selling or provision of cannabis to children remains an offence.
“The question is whether criminal-type penalties should be imposed on children when given recent developments in our law relating to cannabis adults are not visited with such penalties for the same conduct,” she said.
The issue arose when four children were arrested and brought before the Child Justice Court in Krugersdorp. They were tested positive for the use of cannabis at school.
In each case the child received a diversion order to undergo certain programmes.
These children, however, failed to comply with the order and, as a consequence, were forced to stay at a youth care centre operated by African Global Operations (formerly Bosasa), the controversial company that provides prison services to the government. The question then arose whether the justice system was the correct forum to deal with these children and others in the same position.
The Centre for Child Law gave its input as “a friend of the court” and to make submissions regarding the treatment of children who smoke cannabis.
It 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.
According to the centre emphasis should rather be placed on treating children for drug dependency, rather than criminalising, incarcerating and punishing them, especially when adults in the same position are treated differently.
Justice Minister Ronald Lamola, in his written submissions to the court, confirmed there was indisputable evidence that arresting children for the use of cannabis had a negative effect on them.
“The minister is of the view that the best interest of the child principle requires that a child orientated approach should be followed to deal with their drug abuse. These include drug awareness and educational programmes, drug prevention programmes, treatment and rehabilitation.”
The judge said this case was not about the legalisation of cannabis for children. It was about decriminalising its use so that other more appropriate assistance may be rendered to children.
“Although there is a legitimate governmental purpose to protect children against the use and abuse of substances that are harmful for them, putting them through the criminal justice system is not an effective and appropriate manner to achieve this.”
She added that criminalising children for dagga-related offences, even under the guise of prevention, will have a most negative effect on them.3
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