Somerset West resident Jason Smit challenged the constitutionality of the Drugs and Drugs Trafficking Act while facing extradition to the United Kingdom where he was charged with illegally cultivating cannabis. He won his case, but as The Clash sang “I Fought the Law and the Law Won” now he’s being sent back to face charges under the new Drugs Act.
Jason Smit was arrested in March 2008 in Penrith, England after British police searched three premises connected to him where they allegedly found over 1 200 cannabis plants growing under heatlamps and an amount of dried flower with a collective value of under 100 000 British pounds. 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 inquiry.
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 further, challenging not only his extradition but also the legality of the Drugs Act and accompanying schedules outlawing cannabis and a number of other drugs, and called for them to be declared unconstitutional.
They also pointed out that 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.
Smit instituted proceedings in the high court seeking an order declaring section 63 of the Drugs Act, as well as Schedules 1 and 2, constitutionally invalid. He also challenged the Extradition Act on the basis of double criminality.
The High Court found that section 63 of the Drugs Act did represent a violation of the separation of powers and a usurpation of the legislative making powers of Parliament as it allowed the justice minister to determine which substances or plants are prohibited or permitted in South Africa.
Meanwhile, the Constitutional Court decriminalised the possession and cultivation of cannabis in private by adults for personal consumption in September 2018.
When the case went to the apex court for confirmation in 2020, Smit argued for the schedules to be struck down in their entirety.
The court agreed that the act violated the doctrine of separation of powers and was constitutionally impermissible and gave Parliament 24 months to make amendments. Effectively Jason Smit bought down the old Drugs Act but that didn't get him off the cannabis hook.
The court’s judgment read, in part: “Although the order by the high court amounted to an empty victory for the applicant, it is clear that in bringing the application he believed that an order declaring that section 63, together with all the schedules, is inconsistent with the Constitution, would lead to a finding that cannabis is no longer an offence in South Africa.
“This would mean that the double criminality requirement had not been satisfied and that the warrant for his extradition would be successfully challenged.”
Cannabiz Africa understands that although the Department of Justice intends going ahead with the extradition under the new Drugs Act, it’s unclear whether Smit has been re-arrested.
Brought to you by: