S v L M and Others (97/18; 98/18; 99/18; 100/18) [2020] ZAGPJHC 170; [2020] 4 All SA 249 (GJ); 2020 (2) SACR 509 (GJ); 2021 (1) SA 285 (GJ) (31 July 2020)

S v L M and Others (97/18; 98/18; 99/18; 100/18) [2020] ZAGPJHC 170; [2020] 4 All SA 249 (GJ); 2020 (2) SACR 509 (GJ); 2021 (1) SA 285 (GJ) (31 July 2020)

The court held that section 4(b) of the Drugs and Drug Trafficking Act, as applied to children, is unconstitutional because it unfairly discriminates on the basis of age, violates the best interests of the child, and exposes children to the criminal justice system for conduct that is no longer criminal for adults. The court found that status offences are condemned under international and regional law, and that South Africa is obliged to interpret its laws in line with these standards. The Child Justice Act does not permit compulsory residence as a diversion option for Schedule 1 offences, and diversion orders must be individualised and proportionate. Drug testing at schools may not...

Citation
[2020] ZAGPJHC 170
Parties
Applicant: The State; Respondent: LM and 3 Others (Child Offenders); Respondent: Director of Public Prosecutions; Respondent: Minister of Justice and Correctional Services; Respondent: Minister of Social Development; Respondent: Minister of Health; Respondent: Minister of Basic Education; Respondent: Minister of Police; Respondent: Centre for Child Law
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
31 July 2020
Case Number
97/18; 98/18; 99/18; 100/18
Procedural Posture
Review Application / Final Judgment After Extended Rule Nisi and Multiple Joinders
Outcome
Section 4(b) of the Drugs and Drug Trafficking Act is declared unconstitutional as applied to children. Compulsory residence as a diversion option for Schedule 1 offences is unlawful. All children subjected to such orders are to be released immediately. Youth care centres are interdicted from receiving further...
Judges
I Opperman, R Mokgoatlheng
Legal Topics
Decriminalisation of Cannabis for Children, Status Offences, Child Justice Act, Best Interests of the Child, Unfair Discrimination, School Drug Testing
Criminal Law Constitutional Law Family and Children Decriminalisation of Cannabis for Children Status Offences Child Justice Act Best Interests of the Child Unfair Discrimination +1 more

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Parties

The State

Applicant

LM and 3 Others (Child Offenders)

Respondent

Director of Public Prosecutions

Respondent

Minister of Justice and Correctional Services

Respondent

Minister of Social Development

Respondent

Minister of Health

Respondent

Minister of Basic Education

Respondent

Minister of Police

Respondent

Centre for Child Law

Respondent

Procedural Posture

Review Application / Final Judgment After Extended Rule Nisi and Multiple Joinders

Legal Issues

  1. 1 Whether section 4(b) of the Drugs and Drug Trafficking Act is constitutional as applied to children.
  2. 2 Whether children may be subjected to criminal penalties for cannabis use or possession when adults are not.
  3. 3 Whether compulsory residence as a diversion option for Schedule 1 offences under the Child Justice Act is lawful.

Ratio Decidendi

The court held that section 4(b) of the Drugs and Drug Trafficking Act, as applied to children, is unconstitutional because it unfairly discriminates on the basis of age, violates the best interests of the child, and exposes children to the criminal justice system for conduct that is no longer criminal for adults. The court found that status offences are condemned under international and regional law, and that South Africa is obliged to interpret its laws in line with these standards. The Child Justice Act does not permit compulsory residence as a diversion option for Schedule 1 offences, and diversion orders must be individualised and proportionate. Drug testing at schools may not...

Court Disposition

Section 4(b) of the Drugs and Drug Trafficking Act is declared unconstitutional as applied to children. Compulsory residence as a diversion option for Schedule 1 offences is unlawful. All children subjected to such orders are to be released immediately. Youth care centres are interdicted from receiving further...

Orders

  • Section 4(b) of the Drugs and Drug Trafficking Act is declared unconstitutional in respect of children.
  • All children subjected to compulsory residence for Schedule 1 offences under the Child Justice Act are to be released immediately.