South Africa should have a new drugs trafficking law by the end of the year – and the definition of cannabis as a narcotic may be eliminated. However, MP’s were taken aback when they learnt they had a new Constitutional Court deadline to meet and bemoaned the State’s lack of capacity in legal draughtmanship.
Members of the Justice and Correctional Services Portfolio Committee were surprised to hear that a new Drug Trafficking Bill will be presented to them next week for ‘fast-track’ consideration. The Committee, which is dealing with the Cannabis for Private Purposes Bill, had not been informed that it also had a Concourt obligation to change the Drugs and Drug Trafficking Act of 1990 and have a replacement in place within three and a half months!
Parliament is already two years behind the deadline set for it by the 2018 Concourt ruling for it to enact enabling legislation allowing the private consumption of cannabis.
Now MP’s have a new race against time. A new Drug Trafficking Bill will be presented to the Committee on Tuesday, 30 August 2022. Members were told that it would have to be approved and then winged through the National Assembly and the Council of Provinces and signed into law by the President before Christmas 2022. Otherwise Parliament would find itself yet again in breach of rulings by the highest court in the land.
State lawyer Nolathando Mpekahla broke the bad news to MP’s on 24 August 2022 during a briefing about court orders affecting legislation. It clearly rattled many members of the Committee, with DA MP Werner Horn saying there should be a formal process put in place to alert Parliament to relevant court rulings.
Mpekahla informed them they had less than six months to replace the current Drugs and Drug Trafficking Act of 1992 in terms of a Constitutional Court order arising from the attempted extradition of a South African man wanted in the United Kingdom on cannabis charges several years ago.
Jason Smit challenged his extradition on a technical legal issue about the separation of powers between the executive and Parliament and the Constitutional Court found that indeed he was correct. It made its ruling on 17 December 2020, saying that Section 63 of the Act enabled the Minister to change the law without Parliamentary approval.
It held that “in the matter between Jason Smit v Minister of Justice and Constitutional Development and Others  ZACC 29, that section 63 of the Act, to the extent that it purports to delegate plenary legislative power to the Minister to amend the schedules to the Act, is inconsistent with the Constitution and therefore invalid”.
Parliament was given 24 months to correct the defects.
The two-year deadline for the new Drugs Trafficking Act is 17 December 2022 and Mpekahla outlined how it would have to be fast trackeds, much to the discomfort of MP’s who felt they were being set up for failure.
Committee chairman Bulelani 'Gratitude' Magwanishe said it was a “very simple Bill” and questioned why it had taken state lawyers so long to draft it. He said as soon as the Bill was presented to MP’s it should be released for public comment immediately if the Concourt deadline was to be met.
The DA’s Glynnis Breytenbach said the new bill raised a broader issue – that of the capacity of the state to actually draft legislation timeously. She said she was aware of a number of impending retirements in the State legal department and that the Committee should raise this as an issue with the Department of Justice.
Cannabiz Africa has not had sight of the new Bill but understands that it may remove the definition of cannabis as a narcotic, in addition to repealing Section 63 of the Act and making the necessary ammendments to Schedules 1 and 2.
Sections of the Drugs Act pertaining to cannabis and minors were also found to be unconstitutional by the South Gauteng High Court last year, so there are also likely to be changes in this regard.