In the case of Centre for Child Law, the Constitutional Court (CC) said that s 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 infringes a child’s rights under ss 10 and 28 of the Constitution. This was after the Centre for Child Law (the applicant) approached the CC for confirmation proceedings on the order, after the High Court declared s 4(b) of the Drugs and Drug Trafficking Act to be inconsistent with the Constitution to the extent that it criminalises the use and/or possession of cannabis by a child.
The CC said that the matter came to it in the form of confirmation proceedings and in terms of s 167(5) of the Constitution, the CC makes the final decision as to whether any Act of Parliament is constitutional. The CC must confirm any order of constitutional invalidity made by the Supreme Court of Appeal and High Court before that order has any force.
The CC said that the matter stems from a special review concerning four children who tested positive for cannabis during a school-sanctioned drug test. Each child was alleged to have been in possession of cannabis, thereby committing an offence in terms of sch 1 of the Child Justice Act 75 of 2008. The children were brought before the Krugersdorp Magistrate’s Court. Agreements were concluded between the State and the parents, which, among others, required the children to participate in diversion programmes. These agreements were also made orders of the court.
The CC said that it later transpired that the children did not comply with the diversion programme as envisaged by the court order, and as a result, they were referred to the Department of Social Development where they were assessed by probation officers. The CC pointed out that probation officers recommended that the children be subjected to a compulsory residential diversion programme at the Walter Sisulu Child and Youth Care Centre or the Bosasa Mogale Leseding Child and Youth Care Centre in Krugersdorp, for an unspecified period. The probation officer’s recommendations were placed on record at the magistrate’s court and were implemented through a court order.
The CC said that the applicant became involved in the matter after being invited by the High Court to be amicus curiae to assist the court. The first respondent was the Director of Public Prosecutions, Johannesburg, who was the applicant in the High Court. The second to six respondents who joined as respondents in the High Court proceeding were the –
The CC pointed out that none of the respondents opposed the confirmation application. However, only the Minister of Correctional Services (the Minister) and the applicant participated in the proceedings before the CC.
The CC said that on 5 February 2019, the High Court held that s 41 of the Child Justice Act did not permit compulsory residence for a sch 1 offence. The High Court further held that the magistrate’s court did not comply with s 58(2) of the Child Justice Act, and the orders of the magistrate’s court were set aside. The four children were immediately released from the respective centres. The High Court further remarked that the matter raised questions about legality of the proceedings, in the light of the CC’s judgment in Minister of Justice and Constitutional Development and Others v Prince (Clarke and Others as Intervening Parties, Doctors for Life International Inc as Amicus Curiae) and related matters 2018 (10) BCLR 1220 (CC).
The CC said that the applicant, in its submission, raised the question of the constitutionality of s 4(b) of the Drugs and Drug Trafficking Act insofar as the children were concerned. The applicant argued that s 4(b) is unconstitutional, and that a child-oriented approach should be followed to respond to drugs among children. All the respondents supported the view that s 4(b) of the Drugs and Drug Trafficking Act was unconstitutional insofar as it applies to a child. The CC pointed out that on 31 July 2020, the High Court delivered a judgment, which among other issues, considered the effect of Prince on children. In Prince the CC confirmed an order of constitutional invalidity, which declared the legislation criminalising the use and/or possession in private by an adult for their own consumption unconstitutional.
The CC said that the High Court held that because Prince does not apply to a child, the child is left in a position where they are treated as a criminal and criminally prosecuted for behaviour, which adults are not criminally liable. The High Court considered international law and regional instruments – which recommended that State parties abolish status offences as these violate the rights of the child – and held that, at the level of international and regional law, status offences infringe several fundamental rights of children and must be abolished.
The CC pointed out that the High Court declared s 4(b) of the Drugs and Drug Trafficking Act to be inconsistent with the Constitution to the extent that it criminalises the use and/or possession of cannabis by a child. The High Court also issued a moratorium pending the law reform, that no child may be arrested and/or prosecuted and/or diverted for contravening the impugned provision. The CC said that the constitutional problem in this case is not one of status offence. To legalise the private possession and use of cannabis by adults does not require that the use and/or possession of cannabis by a child should be recognised.
The CC added that the use and/or possession of cannabis by a child may have adverse effects to which children must not be exposed to. The CC, therefore, pointed out that the constitutional attack on the validity of s 4(b) of the Drugs and Drug Trafficking Act as it applies to the use and/or possession by children of cannabis cannot be founded on simple proposition and to do so would result in a status offence based on age. The CC said the matter is about the consequences of the use and/or possession of cannabis by a child, and whether those consequences should be in the criminal justice system or in social systems.
The CC pointed out that another distinction between Prince and this matter, is that Prince concerns adults, while this matter concerns children. The CC said that the applicant suggested that it determine whether the criminal sanction imposed by the impugned provision is the most appropriate measure to respond to the use and/or possession of cannabis by a child, considering the child’s rights under ss 10 and 28 of the Constitution, as well as South Africa’s international law obligations towards the child. The CC added that this approach is not bound by Prince, but rather centred around the child and their best interests.
The applicants submitted that the criminalisation of the use and/or possession of cannabis by a child does not, in effect, protect the child from exposure to drugs and the dangers of drug abuse. The applicant submitted that incarceration, as a natural consequence of criminalisation, runs the risk of exposing a child to more serious forms of drug abuse and does very little to teach children how to cope once they have been exposed to drugs. Contrary to serving the public good, criminalisation negatively impacts a child’s constitutionally enshrined rights, dignity, health care and social services, as well as their overarching best interests.
The CC pointed out that the Minister agrees with the applicant that subjecting a child to the criminal justice system and imposing custodial penalties on her for the use and/or possession of cannabis is an ineffective form of protection, as there is no evidence demonstrating efficacy of criminalisation as a deterrent. The Minister further submitted that in fact, criminalisation may exacerbate the child’s exposure to drugs.
The CC said that the impact of criminalisation is far-reaching. The CC added that the following constitutional rights are at play –
The CC pointed out that the right of a child for their interests to be treated as being of paramount importance applies to all aspects of the law, which affects the child. The CC said that it is an independent right and extends beyond s 28(1) of the Constitution.
The CC added that the best interests of a child principle is also reflected in international law. The CC said that the United Nations Convention on the Rights of the Child states that ‘in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’. The CC pointed out that the question is: Is it in the best interest of the child that the use and/or possession of cannabis remain criminalised? The CC said that it cannot be that imposing criminal sanctions on a child creates a legal framework for the protection of the child.
The CC added that channelling a child through the criminal justice system as opposed to social systems designed to protect children creates a legal framework for the protection of the child. The CC said that none of the parties condone the use and/or possession of cannabis by children. The parties agreed that a child-oriented approach should be followed when a child is caught using and/or in possession of cannabis.
The CC added that s 28(1)(g) of the Constitution states that every child has the right not to be detained expect as a measure of last resort and, if they are detained, they have a right to be detained ‘only for the shortest appropriate period of time.’ The CC said that the High Court in this matter confirmed that a compulsory residential diversion programme is not one of the options available to a prosecutor in terms of s 53(3) of the Child Justice Act. The CC pointed out that s 53(2)(b) of the Children’s Act provides that anyone acting in the best interests of the child may approach the Children’s Court for an appropriate order. The CC pointed out that the powers of court are extensive, including the provision of prevention or early intervention services.
The CC said that the Children’s Court can, among others, –
The CC pointed out that as there are less restrictive means available to protect a child from cannabis use and/or exposure, it cannot be said that the limitation on a child’s s 28 and s 10 rights is a reasonable and justifiable limitation. The CC said in the result, the impugned provision does not pass the constitutional muster.
The CC, however, pointed out that this judgment does not permit a child to use and/or possession cannabis without consequences, such use and/or possession will be met with a social response. The CC added that furthermore the scope of this judgment is limited to the use and/or possession of cannabis by a child, and no findings is made on the appropriateness of criminalising the use and/or possession of other substances by a child. Nor does the CC decide any issues as to the criminal liability of children who might use their possession of cannabis by children to further criminal purpose. The CC said those issues are not before it and no evidence was led on any substances other than cannabis. The CC lastly pointed out that it deems it necessary to reaffirm that any adult who utilises or implores a child to be in a possession of cannabis can be held criminally liable.
The following order was made:
‘1. The order of the High Court, declaring section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 to be inconsistent with the Constitution and invalid to the extent that it criminalises the use and/or possession of cannabis by a child, is confirmed.
Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.
This article was first published in De Rebus in 2022 (Dec) DR 34.
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