Section of Drugs Act thrown out

The Constitutional Court has thrown out a section of the Drugs Act which lets the justice minister amend the schedules of banned substances without first going through parliament.

Yesterday, the country’s apex court found a section of the Act giving the justice minister the power to add or delete items list-ed in the schedules at relative whim – as long as he first spoke to the health minister – violated the doctrine of separation of powers and was “constitutionally impermissible”.

But it stopped short of throwing out the schedules, so its ruling is unlikely to make much of a difference for the Cape Town man at the heart of the case, Jason Smit, or his bid to avoid a dagga-related prosecution in Britain.

The charges against Smit date back to 2008, when he was living in the UK. He was arrested and charged with a string of offences after police swooped on three properties linked to Smit and discovered more than a thousand dagga plants.

He ended up skipping bail and returning to South Africa but was arrested again in 2015 after the UK authorities tracked him down to Cape Town and issued an extradition request. Smit responded with a constitutional challenge to both the Drugs Act and the Extradition Act.

In terms of the rule of double criminality, an accused can only be extradited to face charges in another country if his or her al-leged offence is a crime in South Africa as well. But Smit’s case was that the legislation outlawing dagga in South Africa – the Drugs Act – was unconstitutional and invalid.

Last year, the Western Cape High Court agreed and set aside the Act, together with all the amendments that had been made to the schedules since its enactment in 1993. But this didn’t take Smit’s case much further, because it still left dagga banned. When the case came before the Constitutional Court for confirmation this year, Smit argued for the schedules to be struck down in their entirety.

Yesterday, Justice Zukisa Tshi-qi – who wrote the main judgment – sided with the high court.“The minister was not competent to exercise plenary legislative powers to amend the schedules, any purported amendments were of no effect on the schedules and therefore invalid. The consequence, therefore, is that there were no schedules created by the minister,” she said.

“As the minister has not validly effected any amendments to the Drugs Act, there is no basis on which to strike down the original portions of the Drugs Act and the original schedules. It follows that only the purported amendments to the schedules are invalid.”

The Constitutional Court also upheld Smit’s challenge to the Extradition Act, which the high court had previously dismissed. Under the offend-ing section, all that is required from a magistrate issuing a warrant of arrest for someone wanted for extradition is a notification from the minister.

The apex court yesterday found this “straight-jacketed” magistrates and made it impossible for them to act as “an independent arbiter and to exercise the kind of oversight that guaran-tees procedural safeguards”.The declaration of invalidity against the section only took effect from yesterday.– bernadettew@citizen.co.za

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