“Children are precious members of our society and any law that affects them must have due regard to their vulnerability and their need for guidance. We have a duty to ensure that they receive the support and assistance that is necessary for their positive growth and development.”

– Teddy Bear Clinic for Abused Children v. Minister of Justice and Constitutional Development, [2013] ZACC 35

Constitutional Court of South Africa| While deciding the legal validity of the declaration by the High Court of South Africa which held S. 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 to be inconsistent with the Constitution and held it’s criminalisation of the use and/or possession of cannabis by a child to be invalid, the bench comprising of Kollapen, Madlanga, Majiedt, Mathopo, Mhlantla*, Theron, Tshiqi, JJ., Mlambo and Unterhalter AJ., confirmed the declaration and gave a time period of 24 months to the Parliament to draft legislative reforms regarding the process.


Four children were found positive for the use of cannabis in a school-sanctioned drug test hence committing an offence in terms of Schedule 1 of the Child Justice Act. They were referred to the Department of Social Development after they failed to go through the diversion programme ordered by the Court, after which they were sent to compulsory residential diversion programmes. The order for compulsory residential diversion programmes was then challenged before the High Court. Centre for Child Law the applicant in the case, a registered law clinic at the University of Pretoria assisted the High Court as amicus curie in the related matter.

The High Court set aside the order of magistrate while questioning the legality of the proceedings as per the case of Minister of Justice and Constitutional Development v. Prince (Clarke and Others Intervening); National Director of Public Prosecutions v. Rubin; National Director of Public Prosecutions v. Acton, [2018] ZACC 30; 2018 (6) SA 393 (CC); 2018 (10) BCLR 1220 (CC).


The proceedings dwelled the High Court into questioning the legality of S. 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 and its alleged constitutional defect. The High Court agreed with the contention of the applicant that Prevention of and Treatment for Substance Abuse Act (PTSAA) and the Children’s Act are better Acts to deal with cannabis related offences in Children.

The High Court took into consideration several international law(s) and regional instruments and stated that the law infringes fundamental rights of children and must be set aside. The High Court analysed the case in the light of section 9 of the Constitution and applied the three-stage test as per the judgment in Harksen v. Lane N.O., [1997] ZACC 12; 1998 (1) SA 300 (CC); 1997 (11) BCLR 1489 (CC). After the application of the test, the High Court concluded that “the criminalisation of these offences is not in the best interests of the child” and called for alternate methods like prevention, early intervention, treatment and rehabilitation processes and mechanisms provided in the Children’s Act and the PTSAA.


The matter comes before the Constitutional Court for confirmation proceedings as per S. 167(5) of the Constitution. The Court held it to be implausible to claim the use and possession of cannabis by a child to be a matter of right. While pressing the need for putting the best interest of children at high importance the Court stated that “our focus in this matter is on decriminalisation, not legalisation.” The Court stated that the case of Minister of Justice and Constitutional Development v. Prince (Clarke and Others Intervening); National Director of Public Prosecutions v. Rubin; National Director of Public Prosecutions v. Acton, [2018] ZACC 30; 2018 (6) SA 393 (CC); 2018 (10) BCLR 1220 (CC) is different that the case at hand as the law has to treat the adults and children differently. The Court stated that the matter at hand does not pertain to the Right of privacy but about choosing the best possible manner to respond to use and/or possession of cannabis by a child.

The Court observed that, “Effectively, criminalisation negates the inherent vulnerability of the child, an action which does not correlate with this Court’s jurisprudence.” The Court also observed that the criminal litigations will have negative effects over the future and prospects of the child and will invariably have serious effects on the future while inflicting trauma on the child. The Court stated that the Children’s rights extend beyond what is enshrined in S. 28 of the Constitution. The Court while shedding light on United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child stated that the best interest of the children is to kept at the paramount importance and pressed at the “contextual nature and inherent flexibility of section 28” which locates the child’s rights in social systems rather than criminal justice system.

The Court observed that detention should be used as the last resort and alternate should be preferred to the criminal sanctions. The right of Children shall only be limited by reasonable and justifiable limitations and criminal sanctions of use and/or possession of Cannabis stigmatise the child and has a directly infringes the right to dignity. The Court shed the light on reasonable restrictions as per the case of S v. Makwanyane, [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC) in the context of S. 36 of the Constitution in which it was held that a court is required to “engage in a balancing exercise and arrive at a global judgment on proportionality and not adhere mechanically to a sequential check-list” and held that the criminal sanctions results in a avoidable trauma.

The Court observed that, “the Constitution does not sanction punishment where such punishment would not serve a legitimate purpose. The efficacy of a deterrent should not be considered in isolation, but alongside its appropriateness” and in the absence of any evidence that the criminalisation is an effective deterrent, such sanctions do not serve the intended purpose and called for the usage of other less restrictive means. The Court also held that S. 150(1)(d) of the Children’s Act to be of utmost importance for the protection of a child if she, “is addicted to a dependence-producing substance and is without any support to obtain treatment for such dependency”. The Court went on to state that the approach of the system should be reformative rather than punitive and called for all State departments to cooperate to prevent and treat substance abuse.

The Court held that the invalidity of law will not have retrospective effects on the already finalised matters, but the criminal records can be expunged.

The Court suspended the limited invalidity of S. 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 for a period of 24 months for the enablement of the Parliament to come up with finalised legislative reforms with regard to a child.

[Centre for Child Law v. Director of Public Prosecutions, Johannesburg, 2022 SCC OnLine CCSA 1, decided on 29-09-2022]

Advocates who appeared in this case:

R M Courtenay, Counsel for the Appellant;

H Rajah and N Buthelez, Counsel for the Respondent No. 2.

*Ritu Singh, Editorial Assistant has put this report together.

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