The State v LM and 3 Others

Four children were tested for cannabis at the Pro-Practicum School and tested positive. They were referred to the criminal justice system and diverted under section 41 of the Child Justice Act 75 of 2008 for allegedly possessing cannabis, a Schedule 1 offence. The children and their parents signed diversion agreements that were made orders of court. When the children allegedly failed to comply with the diversion orders, they were referred to compulsory residence at BOSASA or Walter Sisulu Youth Care Centre based on probation officers' recommendations. This matter came to court on urgent review. Following a February 2019 judgment setting aside the compulsory residence orders, the court discovered through audits that numerous other children (at least 24 learners between 2014-2019) had been similarly processed through the "Drug Child Programme" run by prosecutors, with many being unlawfully detained for Schedule 1 offences. The court also examined whether section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992, criminalizing cannabis possession/use, remained constitutional as applied to children following the Constitutional Court's decision in Prince, which decriminalized adult use of cannabis in private.

• Whether section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 is constitutional insofar as it criminalizes the use and/or possession of cannabis by children following the Prince judgment which decriminalized such conduct for adults
• Whether drug testing at schools under section 8A of the South African Schools Act 84 of 1996 can form the basis for criminal prosecution of learners
• Whether section 41 of the Child Justice Act permits compulsory residence as a diversion option for children who commit Schedule 1 offences
• Whether section 58(4)(c) of the Child Justice Act authorizes compulsory residence for children who fail to comply with previous diversion orders for Schedule 1 offences
• Whether the procedures followed in diverting children complied with the Child Justice Act, including requirements for assessment, individualized justice, and best interests considerations
• Whether section 22A(16) of the Medicines and Related Substances Control Act 101 of 1965 is constitutional as applied to children

1. Section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992 declared inconsistent with the Constitution and invalid to the extent it criminalizes use/possession of cannabis by children. 2. Pending law reform, no child may be arrested/prosecuted/diverted for contravening the impugned provision (moratorium imposed). 3. Orders in paragraphs 1-2 referred to Constitutional Court for confirmation under section 172(2). 4. Declared that section 53(2) read with 53(3) of Child Justice Act does not permit temporary residence diversion for Schedule 1 offences under any circumstances. 5. Declared that section 58(4)(c) does not authorize temporary residence diversion for children who failed previous diversion for Schedule 1 offences. 6. Judgment to be circulated to South African Judicial Education Institute, National Director of Public Prosecutions, heads of Mogale and Walter Sisulu Youth Care Centres, principal of Pro-Practicum School, and Magistrate's Commission. 7. No order as to costs.

1. Section 4(b) of the Drugs and Drug Trafficking Act, insofar as it criminalizes use and possession of cannabis by children, constitutes unfair discrimination on the basis of age in violation of section 9 of the Constitution. Following Prince, the same conduct is lawful for adults, making the continued criminalization for children a status offence without rational connection to a legitimate government purpose. 2. Criminalizing child cannabis use violates section 28(2) (best interests) because exposure to the criminal justice system is deeply traumatizing for children and disproportionately harmful compared to available alternatives. 3. The criminalization violates section 28(1)(g) (right not to be detained except as last resort) because it can lead to arrest and detention for conduct that would not result in detention for adults. 4. Less restrictive means exist to achieve the legitimate purpose of protecting children from drug abuse, including the Prevention of and Treatment for Substance Abuse Act and the Children's Act, which provide health-based interventions outside the criminal justice system. 5. Section 8A(14) of the South African Schools Act expressly prohibits criminal proceedings against learners who test positive for drugs at school; such testing cannot form the basis for referral to the criminal justice system. 6. Section 53(2) read with section 53(3) of the Child Justice Act does not permit compulsory or temporary residence as a diversion option for Schedule 1 offences, as these are limited to level one diversion options which do not include residential placement. 7. Section 58(4)(c) of the Child Justice Act does not authorize compulsory residence for children who fail to comply with previous Schedule 1 diversion orders. 8. The Child Justice Act requires individualized justice based on best interests of each child; standardized diversion orders violate this principle. 9. Section 3(b) of the Child Justice Act requires that children not be treated more severely than adults would be in the same circumstances; indeterminate or lengthy detention for minor offences violates this principle.

The court made several important obiter observations: 1. While not deciding the issue definitively (as no children were charged under it), the court expressed concern about section 22A(16) of the Medicines and Related Substances Control Act, which still criminalizes possession of cannabis without prescription. The court suggested this provision likely suffers from the same constitutional defects as section 4(b) of the Drug Trafficking Act and should be addressed in future legislative reform. 2. The court emphasized it does not encourage or condone cannabis use by children, and that selling or providing cannabis to children remains a criminal offence. The issue is whether criminal penalties should be imposed on children when adults face no such penalties for the same conduct. 3. The court observed that status offences have historically been used for repressive purposes, including apartheid-era laws like pass laws, prohibition of interracial marriage, and segregation of public amenities. 4. The court noted the importance of accreditation for diversion programs under section 56 of the Child Justice Act to prevent exploitative or harmful programs and ensure independent oversight. 5. The court emphasized that diversion constitutes punishment and must be proportionate to the offense; indeterminate detention could amount to cruel, inhuman and degrading punishment. 6. The court criticized the absence of proper record-keeping for children processed through the Drug Child Programme, noting this violated section 60 of the Child Justice Act. 7. The court observed that several children should have been identified as children in need of care and protection under section 41(4) and referred to Children's Court rather than diverted through criminal justice system. 8. The court praised the role of the Centre for Child Law as amicus curiae in assisting the court with these important issues.

This judgment is highly significant in South African constitutional and child justice law. It addresses the constitutional anomaly created after Prince where adults could legally use cannabis privately but children remained criminalized for the same conduct. The court comprehensively analyzed status offences (offences based solely on the offender's status such as age) and found them to violate children's constitutional rights to equality, dignity, best interests, and freedom from detention except as last resort. The judgment reinforces international and regional standards calling for abolition of status offences. It emphasizes that children are individual bearers of rights and that the best interests principle requires individualized justice. The decision clarifies critical aspects of the Child Justice Act, particularly that compulsory residence cannot be imposed for Schedule 1 offences or for non-compliance with Schedule 1 diversions. It exposes systemic failures in implementing the Child Justice Act, including improper use of school drug testing to funnel children into the criminal justice system in violation of the Schools Act, lack of proper assessments, use of non-accredited programs, standardized rather than individualized orders, and detention of children for trivial offences in circumstances where adults would not be detained. The judgment represents a major step toward decriminalizing child drug use in favor of health-based interventions, aligning South Africa with international best practices. It has implications for how the state addresses child substance abuse and reinforces that criminal justice responses must be measures of absolute last resort for children.