ConCourt rules possession, use of dagga by child not criminal offence

The matter stems from a case concerning four children who tested positive for dagga during a school-sanctioned drug test.

They were ordered to undergo compulsory diversion programmes.

The matter was brought by the Centre for Child Law against the NPA and five others, including the Justice Minister, Health Minister, Police Minister, Basic Education Minister, and Social Development Minister.

The landmark ruling was penned by Justice Nonkosi Mhlantla upheld the previous ruling by the High Court in Johannesburg.

The ruling follows the Prince-judgment which legalised the use, possession, and cultivation of cannabis by an adult in private for personal consumption.

However, the present case doesn't concern the legalisation of the use and/or possession of cannabis by a child.

Rather, this matter concerns whether the criminal justice system is the appropriate mechanism to respond to the use and/or possession of cannabis by a child.

"The operation of the order in paragraph 1 is suspended for a period of 24 months to enable Parliament to finalise the legislative reform process. During the period of suspension referred to in paragraph 2, no child may be arrested and/or prosecuted and/or diverted for contravening section 4(b) of the Drugs and Drug Trafficking Act in so far as it criminalises the use and/or possession of cannabis by a child.

"A child apprehended for the use and/or possession of cannabis may be referred to civil processes, including those found in the Children’s Act 38 of 2005 and the Prevention of and Treatment for Substance Abuse Act 70 of 2008."

In a unanimous decision, the apex court found that cannabis use is a social problem, and the appropriate response should be located in social systems as opposed to the criminal justice system.

The court found that there are more effective means than criminalising a child for the use and/or possession of cannabis.