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

Four children tested positive for cannabis during a school drug test. They were brought before the Magistrates' Court and diversion agreements were made. When the children did not comply with the diversion programmes, they were subjected to compulsory residential diversion programmes at youth care centres for an unspecified period. This order was referred to the High Court on urgent review, which held that the Magistrates' Court erred and released the children. The matter evolved into a constitutional challenge concerning whether section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992, which criminalises the use and/or possession of cannabis, was constitutional insofar as it applied to children. The High Court declared the provision unconstitutional as it applied to children and the matter came before the Constitutional Court for confirmation of the order of invalidity.

• Whether section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 is unconstitutional to the extent that it criminalises the use and/or possession of cannabis by a child
• Whether criminalisation of cannabis use/possession by children infringes children's constitutional rights under section 28 (best interests of the child, right not to be detained except as last resort) and section 10 (dignity)
• Whether any limitation on children's rights is reasonable and justifiable under section 36
• Whether less restrictive means exist to address cannabis use/possession by children
• The application of the principle established in Minister of Justice v Prince (adult use of cannabis in private) to children

1. The High Court's order declaring section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 unconstitutional and invalid to the extent it criminalises use and/or possession of cannabis by a child is confirmed. 2. The order is suspended for 24 months to enable Parliament to finalise legislative reform. 3. During suspension, no child may be arrested, prosecuted or diverted for contravening section 4(b) insofar as it criminalises use/possession of cannabis by a child. 4. Children apprehended for cannabis use/possession may be referred to civil processes in the Children's Act and Prevention of and Treatment for Substance Abuse Act. 5. Children previously convicted under section 4(b) for cannabis use/possession may apply for expungement of their criminal records. 6. Affected persons may approach the High Court if administrative/practical problems arise. 7. The Minister of Justice must pay the applicant's costs.

Section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 is unconstitutional and invalid to the extent that it criminalises the use and/or possession of cannabis by a child, as it violates: (1) section 28(2) of the Constitution (best interests of the child are paramount); (2) section 28(1)(g) (right not to be detained except as measure of last resort); and (3) section 10 (right to dignity). This limitation is not reasonable and justifiable under section 36 because: (a) criminalisation does not effectively serve its purported protective purpose; (b) less restrictive means exist in the form of civil interventions under the Children's Act and the Prevention of and Treatment for Substance Abuse Act which are child-centred and rehabilitative; and (c) the harm caused by criminalisation (arrest, detention, criminal records, social stigma, trauma) is disproportionate and inconsistent with children's constitutional rights. The appropriate response to cannabis use/possession by children must be located in social welfare systems that support and rehabilitate children, not in the criminal justice system.

The Court made several important non-binding observations: (1) This judgment does not legalise or condone cannabis use by children - it merely decriminalises it in favour of social responses. (2) The reasoning in Prince (concerning adults' right to privacy for private cannabis use) should not be imported wholesale into children's cases without recognising children's different constitutional position and need for special protection. (3) The judgment does not create a "status offence" problem - children and adults are appropriately treated differently in many legal contexts due to children's vulnerability. (4) The scope is limited to cannabis only - no findings are made regarding criminalisation of other substances by children. (5) The judgment does not address criminal liability of children who deal in cannabis or induce others to use it, or adults who use children's possession of cannabis for criminal purposes. (6) Adults who utilise or encourage children to possess or use cannabis can still be held criminally liable. (7) While decriminalisation is warranted, there is inherent risk if not met with appropriate social responses - emphasising the need for effective implementation of child-centred interventions. (8) International law (UN Convention on the Rights of the Child, African Charter on the Rights and Welfare of the Child) strongly supports decriminalisation of status offences and child-centred approaches to juvenile justice.

This landmark judgment decriminalises cannabis use and possession by children in South Africa, representing a major shift toward child-centred, rehabilitative approaches rather than punitive criminal justice responses. It affirms that children's best interests under section 28(2) of the Constitution are paramount and that criminalisation of children for conduct that is legal for adults (after Prince) creates status offences that violate children's rights. The judgment emphasises South Africa's international law obligations regarding children's rights and juvenile justice. It establishes that where less restrictive, more appropriate means exist (particularly social welfare interventions), criminalisation of child conduct cannot be justified. The case also clarifies that Prince does not automatically extend to children - children do not have a right to use cannabis, but the consequences of such use should be addressed through social systems rather than criminal sanctions. This judgment will require significant legislative and policy reform to establish appropriate non-criminal responses to children's cannabis use.