What the law says about children using or possessing cannabis in South Africa

In the wake of recent developments around the de-criminalising of cannabis use in South Africa, Rui Lopes, an associate at Baker McKenzie Johannesburg, and candidate attorney, Keketso Kgomosotho, look at recent legal developments around the use and/or possession of cannabis by children in South Africa.

In 2018, the Constitutional Court in South Africa delivered the ground-breaking Prince judgement, Minister of Justice and Constitutional Development and Others v Prince, that decriminalised the use, possession and/or cultivation of cannabis by adults in private, and for their own private consumption.

This was a largely welcomed decision as it affirmed an adult’s constitutionally guaranteed freedoms, especially for specially affected sectors of society who use cannabis for a range of personal, religious and medicinal purposes.

The problem, however, was that the judgement, in explicit terms, related only to adults, leaving children in the precarious position of being treated as criminals for the same behaviour that was considered morally, socially and legally acceptable for adults. For children, the use and possession of cannabis remains a crime for which criminal sanctions are actively imposed.

Effectively, the Prince judgement confirmed that the use and/or possession of cannabis was no longer considered deviant behaviour that violated social norms.

This meant that the continued criminalisation vis-à-vis children can only be based on their age, rather than on the fact that the behaviour itself is deemed unacceptable by society. However, because the question did not arise on the facts of the case at the time, the Constitutional Court avoided the question of the constitutionality of the criminalisation of cannabis-related offences in relation to children.

On 31 July 2020, however, the Johannesburg High Court handed down a judgement whereby it held that the criminalisation of the use and/or possession of cannabis by children is, likewise, unconstitutional. The High Court had to answer, in the first instance, whether it remained a crime for children to use or possess cannabis.

Secondly, it had to determine whether it was justifiable for a child to be referred to the criminal justice system after having been found in possession of, or having used cannabis, in light of the recent Prince judgement, which exempted adults from criminal sanctions for the same behaviour.

The matters before the High Court in this case arose when the children in question were referred to the criminal justice system after failing a cannabis drug test administered by their school.

From the outset, the Court emphasised (and this view was shared by all ministers party to the dispute) that it did not condone the use of cannabis by children; rather that “a child-oriented approach should be followed to deal with drug use and abuse which should include drug awareness and educational programs, treatment and rehabilitation.”

Specifically, the Court took issue with the criminalisation of the use and/or possession of cannabis by children, because the criminality was based on the child’s status as a minor. This rendered the offence no more than a status offence which “criminalises behaviour only for certain groups of people, most commonly because of their religion, sexuality or age.”

In support of this position, the Court cites a number of international and regional instruments and commentary from intergovernmental organisations, all of which had adopted an abolitionist approach to status offences.

The High Court found that the criminalisation of cannabis only for children violated the child’s constitutional rights to equality. Specifically, the Court held that the provisions criminalising cannabis for children in the Drug Trafficking Act unfairly discriminated against children “simply because they are children”.

The Court contended that there is no legitimate rational purpose for the criminalisation vis-à-vis children, since the criminalisation was in response to society’s intolerance for that behaviour, and the societal norm (on which criminalisation was based) no longer existed, as demonstrated by the Prince judgement.

In this context, the Court noted that “although there is a legitimate governmental purpose to protect children from the use and abuse of substances that are harmful to them, putting them through the criminal justice system as far as the use or abuse of cannabis is concerned, is not an effective and appropriate manner to achieve this purpose.”

The High Court further found that the limitation on children’s rights was not justifiable in terms of section 36 of the Constitution, precisely because there are alternative and less restrictive means available to protect children from the harmful use of cannabis.

To support this conclusion, the Court cited the Prevention of and Treatment for Substance Abuse Act (PTSAA) and the Children’s Act, nothing that both Acts provide for the prevention, early intervention, treatment and rehabilitation processes and mechanisms orientated towards and available to children, and which function outside the criminal justice system.

The Court noted that “the PTSAA has created a carefully calibrated system to deal with the prevalence of drugs in our communities. It treats the behaviours not as criminal but through the lens of public health. It, in so doing, recognises that this is the most appropriate way to deal with this issue.”

Instead of employing the criminal justice system to achieve government’s purpose of protecting children from the harmful use of cannabis, “existing prevention, early intervention, treatment and rehabilitation processes provided for in the Children’s Act and the PTSAA should be strengthened through consultation with the Departments of Basic Education, Health and Social Development and South African Police Services.”

Essentially, the Court concluded that while the exclusion of children from the scope of the Prince judgement was for the legitimate purposes of protecting children from drug use, which may lead to abuse, the means employed by government to achieve this purpose were not rationally connected to the purpose – especially where means other than criminal sanction exist to achieve the same purpose.

The High Court further held that the continued criminalisation of the use and/or possession of cannabis by children violated the “best interest of the child” principle, noting correctly that “the imposition of criminal liability may, at worst, lead to imprisonment, and, at best to diversion,” that “there can be no debate that exposure to the criminal justice system, generally, is deeply traumatising for children.”

Consequently, it is not difficult to imagine how criminalising children for the possession and/or use of cannabis, even under the guise of prevention and/or deterrence, would have an indelible, disproportionately negative impact on them.

In conclusion, the High Court declared unconstitutional those provisions of the Drugs and Drug Trafficking Act which criminalise cannabis use and/or possession for children.

Pending the conclusion of legislation and policies that will regulate the use and/or possession of cannabis in the aftermath of Prince, the Court imposed a moratorium on arrests, prosecution or diversion of children for contravening the offending provisions.

• By Rui Lopes, associate and Keketso Kgomosotho, candidate attorney, Cannabis Industry Group, Baker McKenzie Johannesburg.

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