Centre for Child Law v Director of Public Prosecutions, Johannesburg and Others

The matter arose from a special review involving four children who tested positive for cannabis during school-sanctioned drug tests and were charged under section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992. They were diverted under the Child Justice Act 75 of 2008 and, following alleged non-compliance, were subjected to compulsory residential diversion programmes by a magistrates’ court. On urgent review, the High Court set aside these orders and, prompted by broader concerns about similar cases, considered the constitutionality of section 4(b) insofar as it criminalised the use and/or possession of cannabis by children. The High Court declared the provision unconstitutional to that extent, triggering confirmation proceedings before the Constitutional Court.

The order of constitutional invalidity declaring section 4(b) of the Drugs and Drug Trafficking Act unconstitutional to the extent that it criminalises the use and/or possession of cannabis by a child was confirmed. The declaration was suspended for 24 months to allow Parliament to enact corrective legislation. During the suspension period, no child may be arrested, prosecuted, or diverted for such conduct. Provision was made for referral to civil processes and for the expungement of relevant criminal records. The Minister of Justice and Correctional Services was ordered to pay the applicant’s costs.

This case is a landmark in South African child justice jurisprudence. It affirms that the best interests of the child require a non-punitive, welfare-oriented response to substance use by children and rejects the use of the criminal justice system for such conduct. The judgment aligns domestic law with constitutional equality principles and international child-rights norms, and clarifies the post-Prince legal position by ensuring that children are not subjected to harsher consequences than adults for cannabis-related conduct.