In September 2018, in a landmark ruling at the Constitutional Court, cannabis was decriminalised for personal and private use.
There was much rejoicing, and folks who had little to no interest in gardening before the ruling, started plotting bits of the garden so that they could cultivate their own stash.
At the same time, in true South African style, there was a fair amount of confusion over how much you could grow or have on you, whether smoking before driving would be considered an offence, and to what extent you could distribute, if at all.
Police were also ordered to cease arresting anyone found in possession of smaller quantities of cannabis while parliament crunched the numbers and put certain measures in place.
As of January, President Ramaphosa announced, following the two year period assigned to the government to come up with the requisite regulatory laws, that a policy was being formulated to address the use of cannabis products for medicinal purposes. Small-scale farmers and independent manufacturers, pending guidelines, would also be allowed to produce the product.
According to the Regulation of Cannabis Bill, drafted by the ministry of justice, South Africans could be allowed to possess up to 600g of dried cannabis in the privacy of their homes for personal use, as well as carrying 60g in public.
However, and this is vitally important – that Bill has not been passed, and many details still need to be ironed out, so those figures do not yet legally apply.
Another pressing question that arose out of the decriminalisation of cannabis for personal and private use, was whether or not those who had been arrested for possession would have their records expunged, or would be released from jail.
Then there is the question of young people and children found smoking or in the possession of cannabis, some of whom have spent months in juvenile detention centres. This was recently solved in the Johannesburg High Court.
Children found guilty of trivial offences, including the possession or use of cannabis, may not be incarcerated, the Johannesburg High Court has ruled.
The question before Judges Ingrid Opperman and Ratha Mokgoathleng was whether criminal penalties should be imposed on children when, following the Constitutional Court judgment Prince v Minister of Justice and Constitutional Development, the same was not true for adults.
“It is a narrow question regarding decriminalisation of its [cannabis] use and possession so that other, more appropriate assistance, can be given to children,” the judges said.
A court-ordered audit found that dozens of children were in youth detention centres, not only for cannabis-related offences, but other petty crimes as well.
One found guilty of stealing goods worth R200 had been sent for compulsory residence for four months.
“If an adult first offender had committed the offence, she or he would most certainly not have been incarcerated at all,” the judges said.
In other “particularly egregious” examples, a child was ordered to “serve” one year for malicious damage to property valued at R300. This after he broke a window and threw bottles at his stepfather.
Another child broke the window of his own home to gain entry for which he was required to serve a six-month sentence.
A senior magistrate drew attention to the fact that there may be other children detained under what local prosecutors called “the drug child programme”, and the court then ordered the audit, and various ministers were joined to the application.
Initially, the office of the Director of Public Prosecutions (DPP) was the lone voice in arguing that the Child Justice Act should be interpreted to include compulsory residence orders which in certain circumstances, were appropriate and in the best interests of the child even in Schedule One offences (the least serious offences).
All agreed that Section 4b of the Drug Trafficking Act, insofar as it applied to children, was unconstitutional, and a child-oriented approach should be followed to deal with drug use and the abuse thereof.
The judgement, which you can read about in more detail, here, will be sent to the South African Judicial Institute, the National Director of Public Prosecutions, the heads of child youth care centres, and the magistrates’ commission.
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