Somerset West resident and UK fugitive Jason Smit is the guy who brought down the Drugs and Drug Trafficking Act of 1990.

Fifty five year old Smit was living in Penrith, England ,when he was arrested in March 2008 on cannabis dealing charges when British police searched his home and two units he was renting in nearby industrial estates. In his house, they allegedly found dried cannabis and a vacuum cleaner which had been adapted to dry it. In the units, they found 1,295 cannabis 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).

Smit was allegedly linked to the items in the units with 13 fingerprint matches. After his arrest he was granted bail but 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 cannabis, were unconstitutional.

Smit’s legal team, headed by Anton Katz SC, then went on the offensive, challenging not only his extradition but also the legality of the Drugs Act and accompanying for schedules outlawing cannabis and a number of other drugs, and called for them to be declared unconstitutional.

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 20 February 2020, the matter came before the Constitutional Court that had 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 cannabis 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.”