Litigation: Cannabis penalties for children ‘irrational’ – Minister

The lawyer representing the Minister of Justice & Correctional Services has told the Constitutional Court it is not rational or fair to impose criminal sanctions on children for the use or possession of cannabis. A News24 report says the apex court will now have to decide if it was correct for the Gauteng High Court (Johannesburg) to declare provisions of the Drugs & Drug Trafficking Act unconstitutional to the extent that it criminalizes the use or possession of cannabis by a child. The Centre for Child Law wants the apex court to confirm that ruling. Advocate Hephzibah Rajah – for the Minister – said there were less restrictive ways through the Children's Act and Substance Abuse Act to deal with children found in possession of cannabis. She added criminalization was not an option. Rajah said incarcerating a child found to be in possession of cannabis was harsh compared to adults in similar possession. 'It is not in the best interest of the child,’ she said. She added the Minister did not ‘condone the use and possession of cannabis by children’ and believed the government should step in and protect children from drug abuse. ‘The Minister says it is not rational and fair to impose a criminal offence of the use and possession of cannabis by children when it had been decriminalized in respect of adults.’

Advocate Morgan Courtenay, for the Centre for Child Law, told the court the case was not about whether children should be allowed to use or possess cannabis, but whether it was constitutionally permissible for children to be subjected to criminal sanctions in order to prevent and deter them from using cannabis. According to the News24 report, he added a criminal sanction could not be justified when it came to children under the guise of prevention and deterrence. Courtenay said when a child was found in possession of cannabis, the system that must deal with the child was not the criminal justice system. He added children have no right, like adults, to have cannabis in their possession but if they did then it was up to the ‘system to determine the reason for that and address the root cause’.