UK man in court to have SA’s prohibited drugs list declared unconstitutional

Jason Smit is sought in the UK for dagga-related crimes, but attempts to extradite him might finally push Parliament to make a decision on the ongoing criminalisation of the cannabis plant in South Africa. He already partially won the first round of a legal challenge against the South African Drugs Act, but now his legal team is pushing for the schedules outlawing a number of drugs, including dagga, to be declared unconstitutional.

A senior law advisor in the office of the Ministry of Justice said in court that they believe this is merely a ploy to use the ruling by the court that it was legal to use dagga in private in South Africa, to escape prosecution in the UK.

“What he hopes to achieve with his challenge is to avoid his extradition to the United Kingdom on the ground that the offences with which he is charged there for which his extradition is sought, are not offences under (valid) South African law,” Lawrence Bassett, the deputy chief state law advisor in the Chief Directorate: Legislative Development within the Department of Justice and Constitutional Development stated in an affidavit before the Constitutional Court.

Bassett explained that the British police searched Smit’s Penrith home in England and two units he was renting in industrial estates close-by during a raid in March 2008. In his house, they found dried dagga and a vacuum cleaner which had been adapted to dry it. In the units, they found 1,295 dagga plants growing under heat lamps, with an estimated street value (once mature and harvested) of between £57,185 and £95,983 (R1.1-million to R1.8-million).  He is linked to the items in the units with 13 fingerprint matches. He was arrested and granted bail. A warrant for his arrest was issued when he failed to appear in court.

UK authorities tracked him down to South Africa and an extradition request was issued. Smit was subsequently arrested in Somerset West near Cape Town in March 2015 and released on bail pending an extradition enquiry.

In September 2018, while this enquiry was still pending, the Constitutional Court ruled that several provisions of the Drugs Act, that criminalised the private use of dagga, were unconstitutional.

Bassett, however, pointed out in his affidavit before court that this judgment was not retrospective and only applicable from 18 September 2018 onwards.

“They consequently can have no effect on the operation of the double criminality requirement in the present matter, because the offences for which the applicant’s extradition is sought arise from his (alleged) large-scale commercial cultivation and possession of dagga for commercial purposes.”

Smit’s legal team, led by advocate Anton Katz SC, argued, however, that Section 63 of the Drugs Act and the schedules to the act were unconstitutional. The schedule lists prohibited substances in South Africa – at this stage including dagga. Section 63 allows the Minister of Justice and Correctional Services to add, delete or amend the list of prohibited substances described in the schedules of the act – this, Katz argued, is a function that should be exercised by Parliament and not by a member of the executive, and as such, it breached the doctrine of separation of powers.

The Cape High Court agreed with this argument and held in an August 2019 ruling that Section 63 of the Drugs Act did violate the separation of powers, subverted requisite public consultative processes and, as a result, any amendments made by the Minister of Justice to the drug schedules were declared unconstitutional and invalid. The court, however, ruled that the schedules, as they were before the minister amended them, should remain in force.

On Thursday, 20 February 2020, the matter came before the Constitutional Court that has to confirm any order of constitutional invalidity. The court also heard Smit’s challenge against parts of the Extradition Act.

Katz argued that without the schedule, prohibitions on the use, possession or dealing-in of drugs would be meaningless. “Indeed, absent the schedules, there would be no crime,” he argued. He added that by giving the powers to draw up schedules to the minister, public participation in the process was cut-off in its entirety.

He added that the power given to the minister was “completely unfettered”, and provided the minister with unilateral decision-making powers. The minister is only required to consult with the Minister of Health.

“If the minister so desires, he may prescribe any plant or substance, from traditional and medicinal herbs, to garden variety geraniums and even caffeine,” Katz argued. 

He added that as a result, Parliament has never needed to consider whether dagga ought to be decriminalised or legalised, despite calls from civil society groups to do so. 

“By ceding responsibility of the schedules to the minister, it has surrendered the obligation to deliberate over which substances ought to remain or be removed from the schedules,” he added.  

Katz further argued that this could create a situation where criminal offences can be created through delegated power. “It means that an individual’s liberty may be taken away without the community having a say in whether certain conduct ought to be prohibited for the common good.”  

Bassett did not take dispute with Katz’ argument about separation of powers, but said in papers before court that as dagga was part of the original schedules when the law was first drawn up in 1993, Smit did not have the legal standing to challenge the law, or the constitutionality of the schedules. He added that as Smit’s case only deals with dagga, he should not be allowed to dispute the constitutionality of all schedules. 

The court reserved judgement. MC