Case CCT 47/21
 ZACC 12
Judgement Date: 25 March 2022
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, 25 March 2022 at 11h00, the Constitutional Court handed down judgment in an application for leave to appeal directly against the order of the High Court of South Africa, KwaZulu-Natal Local Division, Durban. The application was brought by Mr Ayres and Mr Nikolov, who were facing criminal charges for the alleged unlawful dealing in or alternatively, possession of a substance described as methalenedioxymetamfetamine (ecstasy) in the Magistrates Court. The High Court dismissed their application challenging the constitutional validity of section 63 of the Drugs and Drugs Trafficking Act 140 of 1992 (Drugs Act).
The applicants asked this Court to set aside the order of the High Court, arguing that it breached the doctrine of stare decisis because this Court, in Smit v Minister of Justice and Correctional Services and Others, had declared the said provision unconstitutional to the extent that it purports to delegate to the Minister the plenary powers to amend Schedules 1 and 2 of the Drugs Act. The respondents conceded that the order of the High Court should be set aside.
In a unanimous judgment penned by Tlaletsi AJ, the Court held that the doctrine of stare decisis is about respecting the decisions of courts of higher authority and gives effect to the rule of law. In the present case, the doctrine of stare decisis should have dictated that the decision in Smit informed the High Court’s reasoning in the matter. However, the Court held that although the High Court was wrong to conclude that section 63 was constitutional, the order it made, which was to dismiss the application, was correct. Thus, although the High Court’s order was based on incorrect reasoning, the order that was ultimately made was correct, because a court cannot declare legislation constitutional if it has already been declared unconstitutional by the Constitutional Court. The Constitutional Court therefore refused leave to appeal.
The applicants had tried to bring the judgment in Smit to the attention of the High Court before it handed down its judgment by forwarding a copy of the judgment to the respondents’ attorneys with a specific request that it be brought to the attention of the Judge. The respondents’ attorneys failed to comply with this request. As a result, the Constitutional Court set aside the High Court’s order on costs made in favour of the respondents and the respondents were ordered to pay the applicants costs, including the costs of two counsel, in the High Court. Each party was ordered to pay its costs in this Court.
The Full judgment here