MP’s wake up to the fact that dealing in certain hard drugs may become legal in December because of the Department of Justice’s incompetence, while any commercial trade in cannabis will remain illegal on the statute books. The issue raises serious concerns about the State's legal drafting capacity.
The use, possession and dealing of one of the world’s most dangerous drugs, Fentanyl, may become legal from 17 December 2022 - but the commercial trade in cannabis will remain illegal.
That’s because every addition to the schedules detailing illicit drugs since 1996 has been found to be unlawful because of a Constitutional Court decision that Section 63 of the Drugs and Drug Trafficking Act of 1992 is unconstitutional. Section 63 basically empowers the Minister to make decisions Concourt believes are the Legislature’s responsibility.
This was drawn to the DoJ’s attention by a 2015 High Court judgement, which was confirmed by Concourt in 2020, which gave Parliament two years to fix the defects. Now Parliament has less than three months to pass the Drugs and Drug Trafficking Amendment Act of 2022 (by 17 December 2022) or it will be found yet again in breach of the country’s apex court.
That’s the horror facing MP’s who were briefed on the new Bill by Deputy Justice Minister John Jeffery at a virtual sitting of the Justice and Correctional Services Portfolio Committee on 2 September 2022. This was after Cabinet approved the draft version of the Bill on 16 August 2022, after it had been gazetted at the beginning of the month.
During the briefing it emerged that:
There are serious issues of accountability in the DoJ that have put it on a collision course with Parliament;
MP’s across all parties felt the DoJ had let Parliament down, and rifts have opened up within the DoJ as to who is to blame;
The Medicines Act may be unconstitutional for the same reasons as the Drugs Act;
The Department of Health has had zero input since 2014 into what drugs should be included in the Drug Trafficking Act’s schedules;
Many “modern drug” trafficking cases will be non-prosecutable if the Act is not passed this year and South Africa will be in breach of its international legal obligations;
The new Bill is a contradictory piece of legislation to the Cannabis for Private Purposes Bill which will have a clause that over-reaches the definition of cannabis as a narcotic;
Covid has wreaked havoc in the state’s law drafting department;
Nobody has a clue as to what most of the scheduled substances are (hands up as to who knows what "Gamma-hydroxybutyrate" or "beta-hydroxy-3-methyl-fentanyl" actually are, or how they'll make you feel on Saturday night?).
And most astoundingly, state legal drafters removed cannabis as a drug from the new Bill and then reinstated it. It is defined as an “undesirable dependence-producing substance”, or to put it another way, any commercial trade in the plant (unless approved by SAHPRA or the Dept of Agriculture) remains a criminal act.
Jeffery clearly expressed his unhappiness at the DoJ's legal development department at their inability to produce draft laws within the two-year deadlines set by the Constitutional Court. He acknowledged the potential complications that may arise if the Bill is not passed into law before Parliament closes at the end of November, but said the process should be straightforward.
This prompted ACDP MP Steve Swart to accuse Jeffery of nonchalance in the face of the seriousness of the situation. He said it was not fair that the National Assembly, the NCOP and the President would have to sign the bill into law within three months, adding “I have no idea what all these drugs are, and shouldn’t the Department of Health be involved?”
Jeffery replied that he had hoped to spare Parliament the expense of asking Concourt for an extension on the December deadline if that could be avoided.
“But Mr Swart, I’m not being nonchalant...I think it’s the difficulty of executive authority versus the accounting officers in the department…uh…the officials don’t answer directly to us…but I’m extremely annoyed about this Bill and how late it has got to Parliament and it’s against the undertakings I was given by officials, and as I have said, I myself had to intervene to get this Bill on the Cabinet Committee agenda last week, because it just wasn’t going….so I’m sorry Mr Swart if I came across as nonchalant, maybe it’s just covering up annoyance on the issue, but if the Committee feels like the Department should apply for an extension, then we will do so”.
Portfolio committee chair Bulelane Magwanishe found himself crossing swords with his fellow ANC comrade and siding with the views of the DA and ACDP.
“It’s not for the first time we are raising this matter of the late-coming of Constitutional Court rulings as Bills. If the accounting officer does not implement what you want him or her to do, what action are you taking?
“What are you doing to have Parliament’s fears addressed?” asked Magwanishe tartly.
“Because from the time we started we’ve been on the back foot from the Bills passed by the last Parliament. We made an undertaking from this committee that we would ensure that all Bills coming out of the sixth Parliament…that we would meet those deadlines and we have not been able to do so because of the late-coming of these Bills.
“This is straining the relationship between two arms of government, Parliament and the judiciary”.
Jeffery said he thought this had all been dealt with at a meeting last Tuesday, behind closed doors. “When I raised why it had taken so long, I was given a response of problems with the legislative development section. That issue I’ve taken up with the Director-General about what is being done to fix that capacity. One of the drafters died of Covid. Mr Robbertse has had Covid badly. There are also issues of experienced staff members retiring…I thought we covered that on Tuesday.”
Jeffery also pointed out that any new illicit drug to be added to the schedules would have to be passed by Parliament and not just gazetted as in the past.
“The Bill cannot be added to unless it’s by the approval of the House; so I would say rather than pre-empt things and get public input as soon as possible” he said.
Magwanishe confirmed the Bill would be aired for public comment from this weekend for two weeks.
ANC MP Wilma Niewoudt said that as she understood it, every illegal drug on the Drugs Act schedule would technically become legal if the Bill wasn’t passed into law before the Concourt deadline.
“You know we have a big drug problem in South Africa and it will get worse if we don’t pass this Bill in time.”
The committee adjourned until next Tuesday.