“We are not saying children should smoke or grow [cannabis] but it cannot be criminalised,” advocate Morgan Courtenay, representing the centre, told judges Ratha Mokgoathleng and Ingrid Opperman on Thursday.
Subsequently, Justice minister Ronald Lamola has been ordered to provide submissions giving the state’s view on the issue.
In 2013, the Constitutional Court judgment decriminalised sex between minors under the age of 16, in a case brought by the NGO Teddy Bear Clinic, and forms part of the Centre for Child Law’s application in the cannabis case.
It argued that the law had resulted in many children getting criminal records for having consensual sex with people in their own age group.
Last year, the possession of cannabis for private use was legalised, though some interpretations of the Constitutional Court ruling suggest this applies only to adults. However, Courtenay said on Thursday it was up to the court to determine if prosecuting minors for smoking dagga, or sending them through diversion programmes, was in their best interests.
Courtenay said that when dealing with minors accused of criminal acts, the courts were obliged to view each case on its merits.
“The courts … are obliged to be a guardian to all minor children,” he said.
Opperman and Mokgoathleng agreed it was a constitutional issue and ordered Lamola to submit arguments from the government’s view on the matter.
The Centre for Child Law is also asking the court to rule on whether those running diversion programmes should have the power to order forced participation in rehabilitation efforts, which is often more damaging than the actual drug use.