This report from IOL published on 14 October 2023.

Durban - "Child dagga pedlars "could increase and so could the number of children using the substance.

Those are two of the concerns expressed by parties at opposite ends of the spectrum of those opposed to the insertion of a “protection of child” clause in the Cannabis for Private Purposes Bill.

The ACDP say easy access to cannabis could have a negative effect on society and that there is medical evidence that it has a negative effect on the cognitive development of a child.

Pro-cannabis lobbyists say the bill is still restrictive and doesn’t go far enough.

Parliament invited public comments on the bill, particularly on the clause which proposes that instead of children ending up in the criminal justice system, alternative solutions should be found to deal with those under 18 who are found guilty of the prohibited use, possession, cultivation or dealing in cannabis.

Some say various provisions in the bill as a whole are ambiguous and need clarification, while others believe the “protection of child” clause could open the door to more addiction and youngsters being encouraged to sell cannabis products because they would not end up with criminal records.

Childline KZN acting director Adeshini Naicker said their concern was whether adults could use this to their advantage without thinking about the impact on the child.

“While many programmes have been implemented to provide alternatives to prosecution for juvenile offenders, such as diversion programmes, community service and restorative processes, we have to question whether this process can be abused.

“Adults can exploit this situation by using juveniles to commit these offences and this one’s especially easy to do with cannabis,” said Naicker.

“At Childline we are advocates for children and believe all actions must be in the best interest of the child, but we are also concerned about accountability. How do we teach our children accountability?” asked Naicker.

Daveraj Sauls, an associate at law firm Webber Wentzel, said the “protection of child” clause also stipulated that an adult (in a position of authority, supervision or care of a child) who possesses or cultivates cannabis must take “reasonable measures” to ensure that children could not access cannabis.

He said several developments, including a recent Constitutional Court ruling, led to the insertion of this clause into the bill which then prompted Parliament’s Portfolio Committee on Justice and Correctional Services to invite public input on the matter.

The Constitutional Court confirmed an order of the High Court declaring a section of the Drugs and Drug Trafficking Act of 1992 inconsistent with the Constitution and invalid to the extent that it criminalised the use and/or possession of cannabis by a child. 

The case came after four children tested positive for cannabis at their school and they ended up in the criminal justice system.

“The alternative would be court orders which provide that the children should go through some sort of rehabilitation process, therapeutic programme, intervention programme besides the whole criminal justice system,” said Sauls.

He stressed that while there were “strictly legal and constitutional underpinnings” of why the bill was important, there were also “commercial realities”. From an economic perspective cannabis was regarded as an opportunity to foster economic growth, said Sauls.

The Independent on Saturday is aware of a submission by the Medical Research Council (MRC) in which it warned there would be a surge in the need for mental health and substance abuse treatment if the bill was passed. The MRC warned that psychiatric services in the Eastern Cape, KwaZulu-Natal and the Western Cape were already under-resourced because of the burden caused by cannabis-induced psychoses.

Lawyer and politician Steve Swart from the ACDP said they were not in favour of the bill because of the impact it was likely to have on society.

“We do understand the possible usage of medicinal cannabis and hemp, which is low THC, which is the psychotic part of that. The cannabis industry is also not in favour of the bill; they say it doesn’t go far enough. We say it has a negative impact on society because it can be a gateway to other drugs.”

Swart, who sits on the parliamentary committee dealing with the bill, helped draft the Child Justice Act which diverts children away from the formal criminal justice system when they commit offences.

He said while adults can possess (not deal in) cannabis, it was illegal for children to deal or possess cannabis but it was unconstitutional for children to be arrested.

Swart said this meant social development ‒ “under pressure already” ‒ should deal with the matter.

He also warned about more drug pedlars using children to sell cannabis, with no provisions in the criminal justice process to deal with a child in possession or dealing in it.

Social anthropologist Etienne van Zyl represents Fields of Green For All, a civil society organisation interested in the rights of the existing cannabis industry and general human rights.

Van Zyl said prohibition had “inflated” fears of cannabis and created “quite a skewed perception” about its effects.

He said the bill in its entirety took away the parents’ responsibility to do what they felt was in the child’s best interests, like in matters of health.

He said parents “shouldn’t be criminalised” if there was cannabis around. Instead they should take measures, as provided in the alcohol act, for children not to be able to access cannabis.

“We should be giving power to parents to be responsible for their children, but for criminal clauses to be removed, because there’s no reason to criminalise a parent for that. There are other mechanisms in law to protect a child,” he said.

Van Zyl said another issue was that the bill specified that cannabis could be used but there should be a distance between the user and a neighbour. Van Zyl said this was impossible, especially in informal settlements where space was limited.

“Not everybody has a back garden, not everybody has more than a 5x5 metre space to consume cannabis so that’s another thing that is not in the child clause,” he said.

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