Smit v Minister of Justice and Correctional Services and Others

• Jurisdiction: South Africa
• Judgment Date: 16 August 2019
• Citation: 2019 (2) SACR 516 (WCC)

Smit v Minister of Justice and Correctional Services and Others
2019 (2) SACR 516 (WCC)

2019 (2) SACR p516

Citation	2019 (2) SACR 516 (WCC)
Case No	14655/2015
Court	Western Cape Division, Cape Town
Judge	Francis AJ
Heard	August 16, 2019
Judgment	August 16, 2019
Counsel	A Katz SC (with Adv D Simonsz) for the applicant.; A Breitenbach SC (with Adv Mayosi and Adv Christians) for the first and third respondents.

Flynote : Sleutelwoorde

Extradition B — Warrant of arrest in terms of s 5(1)(a) of Extradition Act 67 of 1962 — Validity of s 5(1)(a) — Section not infringing right to protection from arbitrary deprivation of freedom provided by s 12(1)(a) of Constitution.

Drugs C — Minister's powers to amend schedules under s 63 of Drugs and Drugs Trafficking Act 140 of 1992 — Constituting impermissible delegation of plenary legislative power to Minister — Violation of separation-of-powers doctrine — Impugned provision, and amendments made to schedules by Minister in terms thereof, inconsistent with Constitution D and invalid.

Headnote : Kopnota

The applicant challenged his extradition to the United Kingdom for various criminal offences relating to the production, cultivation, possession and supply of cannabis on the basis that it conflicted with the double-criminality E principle. He contended that the schedule to the Drugs and Drugs Trafficking Act 140 of 1992 (the Act), proscribing the possession and dealing in cannabis, was unconstitutional and invalid, because the drug was proscribed as a consequence of the Minister exercising a plenary legislative power conferred on him in terms of s 63 of the Act — which he argued was a breach of the separation-of-powers doctrine, a cornerstone of the South African F constitutional order. When amending the schedules to the Act, the Minister exercised a discretion to retain cannabis as a prohibited drug. Since cannabis was not lawfully retained in the schedules, according to the submission, his alleged conduct could not be held to be criminal or unlawful. In addition, the Constitutional Court had declared certain sections of the Act to be inconsistent with the Constitution and invalid to G the extent that those sections prohibited the use or possession of cannabis by an adult in private for his or her own consumption. Therefore, although the possession of cannabis may be proscribed in the United Kingdom, it was not so in South Africa and, as a consequence, the double-criminality rule was not satisfied, and that directly impacted on the question as to whether or not the applicant could be lawfully extradited from South Africa to the United Kingdom.

He H also challenged s 5(1)(a) of the Extradition Act 67 of 1962 (the Extradition Act) and argued that the magistrate did not exercise an independent discretion with regard to the issue of the arrest warrant, but was merely directed to do so by the Minister. As such, the section unjustifiably infringed s 12(1)(a) of the Constitution, which affords everyone the right not to be deprived of their freedom arbitrarily or without just I cause.

The Minister disputed the applicant's locus standi to challenge the constitutionality of s 63 of the Act. As to locus standi,

Held, that, given the thrust of the applicant's cause of action, the Minister adopted too narrow an approach to his standing. The applicant did not only J challenge the cannabis prohibition, but also challenged the statute and the

2019 (2) SACR p517

schedules on the basis of the rule of law and the principle of legality. A He would have standing in respect of those objective criteria alone. The possible usurpation by the executive of plenary legislative powers was also a matter of public interest, impacting as it did on the broader concerns of accountability and responsiveness, which were the hallmarks of the doctrine of the separation of powers. The applicant had sufficient interest in the subject-matter of the dispute to clothe himself with standing. B (See [18] – [19].)

Held, further, the applicant's challenge to the constitutionality of s 5(1)(a) of the Extradition Act appeared to be based on a fundamental misconception of the purposes behind the issue of a warrant, within the context of the extradition process. The issuing of a warrant did not necessarily entail a substantive exercise of any discretion by the magistrate, but was simply C dependent on the establishment of an objective fact, namely the issue of a notification by the Minister. It did not infringe his constitutionally protected right to freedom and security, and not to be deprived of freedom arbitrarily or without just cause. The deprivation of freedom occasioned by an extradition occurred, not when the magistrate concluded an inquiry, but D when the Minister decided in terms of s 11 that extradition should take place. (See [37] and [40].)

Held, further, that s 63 of the Act constituted an impermissible delegation of plenary legislative power to a member of the executive, namely the Minister. When the Minister took a decision to include or delete a substance in the schedule to the Act, he was in fact amending plenary legislation. Furthermore, E s 63 fell to be impugned, in that it did not impose limits on the Minister's discretion when determining which substances should be inserted into, deleted from, or retained in any of the schedules. The section represented a violation of the separation of powers, and a usurpation of the legislation making powers of Parliament with regard to plenary lawmaking. (See [26] – [27].) The application was accordingly dismissed and s 63 of the F Drugs and Drug Trafficking Act 140 of 1992, and certain amendments made to the schedules by the Minister, were declared inconsistent with the Constitution and invalid.

Cases cited

Abel v Minister of Justice and Others 2002 (2) SACR 333 (C) (2001 (1) SA 1230; [2000] 4 All SA 63): dicta in paras [39] and [68] applied G

Alexandra v Minister of Justice and Others 2010 (1) NR 328 (SC) ([2010] NASC 2): referred to

Biowatch Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC) (2009 (10) BCLR 1014; [2009] ZACC 14): applied

Dawood and Another v Minister of Home Affairs and Others; H Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others 2000 (3) SA 936 (CC) (2000 (8) BCLR 837; [2000] ZACC 8): dictum in para [54] applied

De Reuck v Director of Public Prosecutions, Witwatersrand Local Division, and Others 2003 (2) SACR 445 (CC) (2004 (1) SA 406; 2003 (12) BCLR 1333; [2003] ZACC 19): applied I

Director of Public Prosecutions, Cape of Good Hope v Robinson 2005 (1) SACR 1 (CC) (2005 (4) SA 1; 2005 (2) BCLR 103): dictum in para [33] applied

Doctors for Life International v Speaker of the National Assembly and Others 2006 (6) SA 416 (CC) (2006 (12) BCLR 1399; [2006] ZACC 11): applied J

2019 (2) SACR p518

Executive Council, Western Cape Legislature, and Others v President of the Republic of South Africa and Others A 1995 (4) SA 877 (CC) (1995 (10) BCLR 1289; [1995] ZACC 8): dictum in para [51] applied

Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa 1996 1996 (4) SA 744 (CC) (1996 (10) BCLR 1253; [1996] ZACC 26): referred to

Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others B 1996 (1) SA 984 (CC) (1996 (1) BCLR 1; [1995] ZACC 13): applied

Geuking v President of the Republic of South Africa and Others 2003 (1) SACR 404 (CC) (2003 (3) SA 34; 2004 (9) BCLR 895; [2002] ZACC 29): dictum in para [1] applied

Giant Concerts CC v Rinaldo Investments (Pty) Ltd C 2013 (3) BCLR 251 (CC) ([2012] ZACC 28): dictum in para [43] compared

Harksen v Director of Public Prosecutions, Cape, and Others 2002 (2) SA 563 (C): dicta at 567I – 568A and 569J – 570C followed

Harksen v President of the Republic of South Africa and Others 2000 (1) SACR 300 (CC) (2000 (2) SA 825; 2000 (5) BCLR 478): dictum in para [4] D applied

Justice Alliance of South Africa v President of Republic of South Africa and Others 2011 (5) SA 388 (CC) (2011 (10) BCLR 1017; [2011] ZACC 23): applied

Kruger v President of the Republic of South Africa and Others 2009 (1) SA 417 (CC) (2009 (3) BCLR 268; [2008] ZACC 17): referred to

Matatiele Municipality and Others v President of the Republic of South Africa and Others (No 2) E 2007 (6) SA 477 (CC) (2007 (1) BCLR 47; [2006] ZACC 12): referred to

MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd t/a Eye & Lazer Institute 2014 (3) SA 481 (CC) (2014 (5) BCLR 547; [2014] ZACC 6): referred to

Minister of Health and Others v Treatment Action Campaign and Others (No 2) F 2002 (5) SA 721 (CC) (2002 (10) BCLR 1033; [2002] ZACC 15): dictum in para [98] applied

Minister of Home Affairs v Eisenberg & Associates: In re Eisenberg & Associates v Minister of Home Affairs and Others 2003 (5) SA 281 (CC) (2003 (8) BCLR 838): referred to

Minister of Justice and Constitutional Development and Others v Prince and Others G 2019 (1) SACR 14 (CC) (2018 (6) SA 393; 2018 (10) BCLR 1220; [2018] ZACC 30): applied

Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA) ([2004] 3 All SA 1; [2004] ZASCA 48): applied

Patel v National Director of Public Prosecutions 2017 (1) SACR 456 (SCA): H referred to

S v Jordan and Others (Sex Workers Education and Advocacy Task Force and Others as Amici Curiae) 2002 (2) SACR 499 (CC) (2002 (6) SA 642; 2002 (11) BCLR 1117; [2002] ZACC 22): dictum in para [21] applied

S v McCarthy 1995 (3) SA 731 (A): dictum at 738G applied.

Legislation cited

Statutes

The I Constitution, s 12(1)(a): see Juta's Statutes of South Africa 2018/19 vol 1 at 1-22

The Drugs and Drug Trafficking Act 140 of 1992, s 63 and schedules to the Act: see Juta's...