CONSTITUTIONAL COURT OF SOUTH AFRICA
Centre for Child Law v Director for Public Prosecutions, Johannesburg and Others
CCT 210/21 Date of hearing: 3 March 2022 ________________________________________________________________________
MEDIA SUMMARY
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The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Thursday, 3 March 2022 at 10h00, the Constitutional Court will hear an application for the confirmation of an order of constitutional invalidity made by the High Court of South Africa, Gauteng Local Division, Johannesburg. The High Court declared section 4(b) of the Drugs and Drug Trafficking Act (Drugs Act) unconstitutional to the extent that it criminalises the use and/or possession of cannabis by a child. Before the Constitutional Court, the applicant, Centre for Child Law, and the second respondent, the Minister of Justice and Correctional Services agree that the impugned section is unconstitutional.
The factual matrix of this matter has its genesis in four children who tested positive for cannabis while at school. The four children and their parents appeared before the Krugersdorp Magistrates’ Court, where agreements were concluded in terms of which the children would undergo diversion programmes. The agreements were then made orders of court. It later transpired that all four children did not comply with the conditions of the diversion programmes. The children were then referred to the Department of Social Development, where they were assessed by probation officers. They recommended that the children should be subjected to a compulsory residential diversion programme for an unspecified period. The recommendations were placed on record at the Magistrates’ Court, and were implemented through a court order.
The order subjecting the children to compulsory residential diversion programmes was referred by the Acting Senior Magistrate to the High Court for an urgent special review.
On 5 February 2019, the High Court handed down a judgment in which it held that
section 41 of the Child Justice Act did not permit compulsory residence for a Schedule 1 offence. The High Court further held that the Magistrates’ Court had not complied with section 58 of the Child Justice Act. The orders of the Magistrates’ Court were set aside and the four children were released from the centres. The High Court remarked that the matter raised questions about the propriety of the proceedings, in light of the Constitutional Court’s judgment in Minister of Justice and Constitutional Development v Prince (Prince) where the Court held that criminalising the use and/or possession of cannabis in private by an adult person for his or her own consumption is inconsistent with section 14 of the Constitution, being the right to privacy.
After the review application, the High Court’s attention was drawn to a special diversion project managed by the Senior Prosecutor of Johannesburg, which involved other children similarly detained under this programme. Ultimately, this led to the High Court delving into the question of the constitutionality of section 4(b) of the Drugs Act, to the extent that it criminalises the use and/or possession of cannabis by a child.
In its judgment delivered on 31 July 2020, the High Court considered the effect of Prince and held that because it does not apply to children, children are left in a position where they are treated as criminals and criminally prosecuted for behaviour for which adults are not criminally liable. Section 4(b) therefore creates a “status offence”. The High Court held that at the level of international and regional law, status offences violate several fundamental rights of children. In terms of the Constitution, the High Court applied the Harksen v Lane analysis through the prism of the best interests of the child principle, which is encapsulated in section 28(2) of the Constitution. The High Court held that the criminalisation of the use and/or possession of cannabis is not in the best interests of the child, and that there are less restrictive means – both within and outside of the child justice system – available to achieve the purpose. As a result, the High Court declared section 4(b) of the Drugs Act to be inconsistent with the Constitution, to the extent that it criminalises the possession and/or use of cannabis by a child. Pending the law reform, the High Court issued an order prohibiting the arrest and/or prosecution and/or diversion of a child for contravening the impugned provision.
The applicant in the Constitutional Court, Centre for Child Law (CCL), was not a party to the litigation before the High Court, but was invited to participate as amicus curiae. After the High Court’s order, none of the parties to the litigation brought the application for confirmation to the Constitutional Court. CCL took it upon itself to bring the application as it has sufficient interests in the matter.
The CCL submits that the Court in Prince has inadvertently excluded children from the protection carved out in that judgment. As such, the High Court was correct in holding that the impugned provision violates a child’s rights to equality and to have their best interests considered to be of paramount importance in matters dealing with them. By considering South Africa’s international law obligations towards children, the CCL argues that criminalisation does not satisfy the requirements of being right-compliant and effective, and that it does not protect children from the dangers of drug abuse. Lastly, the CCL argues that there are three constitutional rights that are impacted by treating the use
of cannabis amongst children as a crime, as opposed to treating it as a social and public health issue. These rights are the rights to human dignity, basic healthcare and social services, and the child’s right to have her best interests considered to be of paramount importance in every matter concerning the child.
The second respondent, the Minister of Justice and Correctional Services, concedes that the impugned provision is unconstitutional, and that less restrictive, specifically child-centred means to address drug abuse by children, can and should be implemented.
The Minister submits that the criminal prosecution and incarceration of children for the possession and/or use of cannabis is “absent any legitimate justification” and infringes on their section 28(1)(g) and (2) rights. In the result, the limitation of a child’s rights not to be detained, except as a measure of last resort, and to have her best interests considered as being of paramount importance in matters dealing with the child, is not justified.
Therefore, the criminalisation of the possession and/or use of cannabis by children should not be continued. The Minister thus supports the application for the confirmation of the declaration of invalidity by the High Court.
