Judge rules that cannabis kids cannot be criminals
● A law that criminalises children who possess or use cannabis has been declared unconstitutional by a Johannesburg high court judge.
Judge Ingrid Opperman said the way children were still being treated, two years after the Constitutional Court decriminalised cannabis possession and use for adults, was redolent of apartheid laws.
In a sweeping judgment on Friday that could transform the way children who use drugs are treated by schools and the criminal justice system, Opperman said:
● Dozens of children have been unlawfully detained after testing positive for cannabis;
● A “drug child programme” implemented by prosecutors in Johannesburg operates outside the Child Justice Act and “[throws] the proverbial book at these children”; and
● Sending children to corrections centres was cruel and inhuman.
Opperman said only the Constitutional
Court had the power to suspend part of the Drugs & Drug Trafficking Act in respect of children, otherwise she would have done so.
She issued a temporary moratorium on such prosecution.
The judgment was a sequel to an appeal by the parents of four children who had been placed in the drug child programme. After hearing their case, Opperman invited the Centre for Child Law to make submissions.
On Friday, the judge emphasised that her ruling “does not engage with questions like whether children should use or possess cannabis or whether the use of cannabis is good or bad for the health”.
It was to extricate children from a “legal quagmire” and prevent sending children on diversion programmes that involved being locked up at a corrections centre.
She said her judgment must be sent to all members of the South African Judicial Education Institute who sit in the child justice court, all prosecutors at child justice courts and the Magistrates Commission.
In February last year, Opperman said a 16-year-old Johannesburg boy should never have been jailed after testing positive for cannabis during a school drug test.
Instead, he spent 11 weeks in a juvenile corrections centre, staving off physical attacks and threats of rape from other teens awaiting trial.
The boy told the Sunday Times he lived in constant fear while in detention. “They lock the room at 4pm and then they only let you out in the morning and I didn’t sleep. One night I woke up and there were four boys strangling me and putting a pillow over my face.”