Case  CCT 243/19 & CCT 235/19
[2020] ZACC 29

Hearing Date:  20 February 2020

Judgement Date:  18 December 2020



Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Friday, 18 December 2020 at 10h00, the Constitutional Court handed down judgment in an application for confirmation of an order of the High Court of South Africa, Cape Town (High Court), which declared section 63 of the Drugs and Drug Trafficking Act 140 of 1992 (Drugs Act) and certain amendments made to schedules 1 and 2 thereof, inconsistent with the Constitution and invalid. The judgment also addressed an application for direct appeal seeking the declaration of constitutional invalidity of schedules 1 and 2 of the Drugs Act in their entirety, as well as of section 5(1)(a) of the Extradition Act 67 of 1962. 

The applicant, Mr Jason Smit, was alleged to have committed offences related to the intent to supply cannabis while residing in the United Kingdom (UK). In 2011, the UK delivered a request for the applicant’s extradition, for him to stand trial in connection with the alleged offences. The respondent, the Minister of Justice and Correctional Services (the Minister), subsequently in the same year, issued a notice in terms of section 5(1)(a) of the Extradition Act, requesting the Magistrate, Pretoria, to issue a warrant for the applicant’s arrest as a precursor to the conduct of an extradition enquiry. The warrant was duly issued, and Mr Smit was arrested thereunder on 18 March 2015 and brought before a Magistrate in Somerset West. The matter was postponed for an extradition enquiry, and he was released on bail. His bail has been extended since then.

On 5 August 2015, Mr Smit instituted proceedings in the High Court seeking an order declaring section 63 of the Drugs Act, as well as Schedules 1 and 2 thereof, constitutionally invalid. Mr Smit submitted that section 63 allows the Minister, by notice in the government gazette and after consultation with the Minister of Health, to include, delete or otherwise amend substances in the relevant schedules. Mr Smit further submitted that the power conferred on the Minister was a plenary legislative power and, when exercised by a member of the executive, it breached the separation of powers doctrine. The Minister has repeatedly exercised the power conferred in terms of section 63 since the commencement of the Drugs Act which, Mr Smit submitted, amounts to the legislature assigning its law-making power, to a member of the executive.

In respect of the challenge to section 5(1)(a) of the Extradition Act, Mr Smit submitted that a Magistrate is empowered to issue a warrant of arrest for a person upon receipt of a notification from the Minister that an extradition request has been received in respect of such person from a foreign State. Mr Smit sought to impugn section 5(1)(a) on the basis that the Magistrate does not exercise an independent discretion regarding the issuing of the warrant, but is merely directed to do so by the Minister. Mr Smit submitted further that, section 5(1)(a) unjustifiably infringes upon section 12(1)(a) of the Constitution, which affords everyone a right not to be deprived of their freedom arbitrarily or without just cause.

The High Court held that section 63 of the Drugs Act represented a violation of the separation of powers and a usurpation of the legislative making powers of parliament. It further held that the delegation of the powers to amend the schedules to the Drugs Act, which contains criminal sanctions related to the drugs listed in the relevant schedules, results in the subversion of the requisite public consultative processes. The High Court consequently declared section 63, along with the amendments made to Schedules 1 and 2 by the Minister, unconstitutional and invalid.

Regarding section 5(1)(a) of the Extradition Act, the High Court reasoned that the challenge was based on a fundamental misconception of the purpose behind the issue of a warrant within the context of the extradition process. The court found that it is always within the powers of a Magistrate, depending on the circumstances, to exercise the discretion on whether or not to issue the warrant. The court further found that the issue of a warrant in the context of section 5(1)(a) cannot be said to be arbitrary or without just cause, and that there are sufficient and important safeguards built into the extradition enquiry to ensure a procedurally fair enquiry for persons such as the applicant. It then concluded that since there is no limitation on the applicant’s constitutionally protected rights, in terms of section 12(1)(a) of the Constitution, it was not necessary to engage in the justification analysis.

In the Constitutional Court, Mr Smit’s submissions consisted of two components. First, he sought to confirm the order and judgment of the High Court declaring unconstitutional and invalid, section 63 of the Drugs Act together with certain amendments to the schedules, as provided in terms of section 172(2)(d) of the Constitution. Second, Mr Smit sought leave to appeal directly to this Court against certain parts of the High Court’s judgment and order. In this respect, Mr Smit sought to have the schedules to the Drugs Act declared unconstitutional and invalid in their entirety, as section 63 allows the Minister rather than parliament, to determine which substances or plants are prohibited or permitted in South Africa. Mr Smit also sought to rely on the decision of this Court in order to bolster its submission that the impugned provisions of the Drugs Act were invalid.

Concerning section 5(1)(a) of the Extradition Act, Mr Smit submitted that the section is unconstitutional because it allows a Magistrate to violate an individual’s liberty based on the discretion of the executive, depriving that individual of his right to freedom and security of the person protected by section 12(1)(a) of the Constitution. Mr Smit argued that the power to issue a warrant is vested with the Minister, since an arrest warrant may be issued by the Magistrate, solely on notification by the Minister of the reception of an extradition request.

The Minister argued that the schedules to the Drug Act were enacted by parliament jointly with the Act itself and that only the amendments to the schedules that followed, were made pursuant of section 63. The Minister further argued that, to succeed, Mr Smit’s attack must be based on a contention that the inclusion of cannabis in Schedule 2 occurred through the process of amendment provided for in section 63. Mr Smit, therefore, failed to show that his rights or interests are directly affected by the challenged law or conduct, being the amendment of the schedules in terms of section 63. Further, the Minister argued that the effect of the order of constitutional invalidity in Prince only relates to possession for private use whilst in this matter, the applicant is alleged to have cultivated the cannabis.

With respect to section 5(1)(a) of the Extradition Act, the Minister submitted that the section does not infringe 12(1)(a) of the Constitution, as the extradition process does not permit the arrest of a person that is arbitrary or without cause. It is merely the first step in a process, which is designed to balance South Africa’s international interests and obligations, and the rights and freedoms of the person whose extradition is sought. The extradition process includes certain safeguards to protect the interest of the person, including section 9 thereof, which provides that where a person has been arrested, they must be brought before a Magistrate, at which point such Magistrate must hold an enquiry. The person arrested may also apply for and be granted bail as soon as possible after the arrest.

The main judgment penned by Tshiqi J (Jafta J, Mhlantla J and Victor AJ concurring) confirmed the order of constitutional invalidity made by the High Court in respect of section 63 of the Drugs Act. It held that section 63 is unconstitutional as it gives the Minister plenary legislative power since the schedules are essentially part of the Act, and therefore the section delegates original power to amend the Act itself. It also held that such section was a complete delegation of original legislative power to the executive with no clear and binding framework for the exercise of the powers, which renders it constitutionally invalid. The main judgment held that section 63 undermines the doctrine of separation of powers. As a result, the main judgment declared section 63 of the Drugs Act and the amendments effected by virtue of that section to be constitutionally invalid. The main judgment suspended the declaration of invalidity for 24 months to allow parliament to cure the defect.

In relation to the direct appeal seeking to declare the entirety of the schedules as invalid, the main judgment held that the original schedules were promulgated by Parliament and could not be impugned. As such a declaration that section 63 is inconsistent with the Constitution means that only the purported amendments made under section 63 should be set aside. It thus dismissed Mr Smit’s direct appeal in this regard.

Regarding the direct appeal to seek the declaration of invalidity of section 5(1)(a) of the Extradition Act, the main judgment finds that section 5(1) is capable of a constitutional interpretation. Such interpretation is based on the fact that the empowering provision uses permissive language to the effect that a Magistrate may issue a warrant, and that the use of permissive language signifies conferral of a discretion. The main judgment finds that the Magistrate must determine whether the warrant to be issued would arbitrarily deprive the arrested person of his or her freedom. The main judgment finds that section 5(1)(a) does not deprive a Magistrate of discretion. It, in itself, does not undermine judicial independence as the section merely sets out a condition that must exist before the power to issue the warrant may be exercised. It cannot follow that once the condition has been satisfied, the Magistrate has been deprived of discretion and is obliged to issue a warrant. The main judgment thus declared section 5(1)(a) of the Extradition Act to be constitutionally compliant and would have dismissed the appeal with regards to that aspect.

The majority judgment penned by Madlanga J (Mogoeng CJ, Khampepe J, Majiedt J, Mathopo AJ and Theron J concurring) agreed with all of the first judgment’s conclusions, save for its dismissal of the section 5(1)(a) challenge. The majority judgment upheld the appeal against that dismissal and declared section 5(1)(a) unconstitutional. It reasoned that the procedural facet of the section 12(1)(a) right not to be deprived of freedom arbitrarily requires judicial oversight, to ensure that appropriate safeguards are followed. And this requirement is satisfied only if a Judicial Officer plays the role of a Judicial Officer, and not merely one of rubberstamping.

Unlike section 5(1)(b), which allows the Magistrate to exercise a discretion, section 5(1)(a) establishes the following jurisdictional facts: a notification, by the Minister; that the Minister has received a request from a foreign State; that the request is for the surrender of the person concerned to the foreign State; and that the request is in respect of an extraditable offence. A Magistrate must issue the warrant if what this section stipulates is satisfied. As a result, not much is required of the Magistrate to exercise her or his mind on what must be done. Mainly, she or he is required to act on the mere say-so of the Minister. That does not in the least afford the procedural safeguards necessary under section 12(1)(a) of the Constitution.

The majority judgment held that the word “may” in section 5(1)(a) means no more than that a Magistrate is being afforded a power to issue a warrant under either section 5(1)(a) or section 5(1)(b), whichever is applicable. It does not confer a discretion in these circumstances. And, to the extent that section 5(2) provides that any warrant issued in terms of section 5(1) shall be in the form and shall be executed as closely as possible to the manner prescribed in respect of warrants in general, that section does not assist the first judgment. “Form” relates to what the warrant must look like, and “execution” is plainly irrelevant to the issue. Section 5(2) does not import the factors to be taken into account when a warrant is issued under section 43(1) of the CPA. Therefore, it does not serve to save section 5(1)(a) from a lack of factors that afford the Magistrate the requisite discretion.

Finally, the majority judgment held that section 5(1)(a) breaches the separation of powers principle, as it requires a Magistrate to issue a warrant of arrest upon receipt of a notification from the Minister – a member of the Executive. It makes it impossible for a Magistrate to act as an independent arbiter and to exercise the kind of oversight that guarantees procedural safeguards.


The Full judgment  here