The State v LM and 3 Others (Child Offenders); Director of Public Prosecutions and Others

Four minor children were subjected to drug testing at school and tested positive for cannabis. Based on these tests, they were drawn into the criminal justice system and diverted under the Child Justice Act 75 of 2008 for alleged Schedule 1 offences relating to possession of cannabis. When the children allegedly failed to comply with diversion conditions, prosecutors sought and obtained court orders committing them to compulsory residence at youth care centres (BOSASA and Walter Sisulu Youth Care Centre). The High Court reviewed these matters, set aside the compulsory residence orders, and subsequently uncovered that many other children had been similarly detained. The case expanded to consider the constitutionality of criminalising children for cannabis use or possession under section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992, the legality of school drug testing leading to criminal proceedings, and systemic misapplication of the Child Justice Act.

Section 4(b) of the Drugs and Drug Trafficking Act was declared unconstitutional and invalid to the extent that it criminalises the use or possession of cannabis by a child. A temporary moratorium was imposed prohibiting the arrest, prosecution or diversion of children for cannabis use or possession pending law reform. The declaration of invalidity was referred to the Constitutional Court for confirmation. It was further declared that compulsory or temporary residence is not a permissible diversion option for Schedule 1 offences under the Child Justice Act. No order as to costs was made.

This judgment is a landmark in South African child justice and constitutional law. It extends the logic of Prince to children by decriminalising cannabis use and possession for minors, rejects age-based status offences, and reinforces the paramountcy of the best interests of the child. It also clarifies limits on diversion under the Child Justice Act, curtails unlawful detention of children, and affirms that school drug testing cannot be used to funnel learners into the criminal justice system.