Criminalising cannabis use and possession by children is unconstitutional, court rules


  • The High Court has ruled that children cannot be incarcerated for trivial offences, such as smoking dagga.
  • Court-ordered audits found children were treated more severely than adults in identical circumstances.
  • A section of the Drug Trafficking Act was found to be unconstitutional.

Children found guilty of trivial offences, including the possession or use of cannabis, may not be incarcerated, the Gauteng High Court in Johannesburg has ruled.

The question before Judges Ingrid Opperman and Ratha Mokgoathleng was whether criminal penalties should 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, GroundUp reported.

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“It is a narrow question regarding decriminalisation of its [cannabis] use and possession so that other, more appropriate assistance, can be given to children,” the judges said.

Court-ordered audits into youth detention centres have revealed that dozens of children were languishing in them, not only for dagga-related offences, but other trivial offences.

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One found guilty of stealing goods worth R200 had been sent for compulsory residence for four months.

“If an adult first offender had committed the offence, she or he would most certainly not have been incarcerated at all,” the judges said.

In other “particularly egregious” examples, a child was ordered to “serve” one year for malicious damage to property valued at R300. This after he broke a window and threw bottles at his stepfather.

Another broke a window to gain access to his own home. For this, he was to serve six months.

Another stole a hair clipper valued at R150; he also got six months.

These centres are not “soft options”, the judges said.

“They are very structured institutions with fenced environments. Going there involves the deprivation of liberty and being placed with other youthful offenders who have committed more serious offences.”

The matter had its genesis in an urgent review concerning four children from Krugersdorp who had tested positive for dagga at school and had been “diverted” in terms of “onerous standardised court orders” which they did not comply with.

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As a result, the local magistrate directed that they be sent for “compulsory residence” at two youth care centres for unspecified periods and their cases were adjourned for…

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