Ayres and Another v Minister of Justice and Correctional Services and Another 2022 (5) BCLR 523 (CC)

In Ayres, the applicants, Gregory Craig Ayres and Valeri Lazanov Nikolov, applied for leave to appeal to the Constitutional Court (CC) against a judgment that was handed down by the KwaZulu-Natal Local Division of the High Court, Durban, which had dismissed the applicants’ challenge to the constitutional validity of s 63 of the Drugs and Drug Trafficking Act 140 of 1992 (the Drugs Act).

The applicants were arrested in November 2014 after allegedly being found in possession of a substance described as methylenedioxymetamfetamine (MDMA) in contravention of the Drugs Act. The applicants were charged in the Middelburg Magistrate’s Court with the alleged unlawful dealing in or alternatively, possession of MDMA. Before pleading to the charges brought against them, the applicants applied to the High Court for an order declaring s 63 of the Drugs Act, as well as the reference to MDMA in Part III of sch 2 to the Drugs Act, to be inconsistent with the Constitution and invalid. Section 63 of the Drugs Act provides:

‘Amendment of Schedule 1 and 2 –

The Minister may by notice in the Gazette and after consultation with the Minister of National Health –

(a) include any substance or plant in Schedule 1 or 2;

(b) delete any substance or plant included in that Schedule; or

(c) otherwise amend that Schedule.’

In the High Court the applicants argued that the power to include, delete or otherwise amend the substances listed in the schedules to the Drugs Act is a plenary legislative power and, when exercised by a member of the Executive, constitutes a breach of the doctrine of separation of powers. The High Court stated that the applicants’ attack was mainly directed at the inclusion of MDMA in Part III of sch 2 of the Drugs Act. The High Court rejected the applicants’ attack and concluded that the application should be dismissed. The High Court pointed out that the applicants had not argued that the Minister of National Health (the Minister) had abused his power. The High Court held that it was permissible for Parliament to delegate the power it delegated to the Minister in this case.

The CC said that whether leave to appeal would be granted would be determined on the basis of whether or not it was in the interests of justice to grant such leave. The CC added that in this matter it was in the interest of justice to grant leave because:

‘(a) there are reasonable prospects of success since the CC has already given a judgment declaring s 63 of the Drugs Act constitutionally invalid and the judgment sought to be appealed against is in conflict with that judgment.

(b) there is no need to insist that the applicants should first approach the Supreme Court of Appeal [SCA] as the CC has already pronounced on the issue’.

The court said it was of the view that the matter warrants the granting of leave to appeal directly to it.

The CC pointed out that in Smit v Minister of Justice and Correctional Services and Others 2021 (3) BCLR 219 (CC) it considered the constitutionality of the impugned provisions. The CC added that the first judgment held that s 63, which confers on the Minister plenary legislative power to amend the schedules, which are part of the Drugs Act, is a delegation of original power to amend the Drugs Act, amounting to a complete delegation of legislative power to the executive. The CC said that the majority judgment affirmed the first judgment and declared, among other things, that s 63 of the Drugs Act, as well as the reference to the MDMA in Part III of sch 2 to the Drug Act, are invalid and unconstitutional. The CC pointed out that the High Court did not deal with or seek to distinguish Smit and neither did it consider whether MDMA was included in sch 2 when the Drugs Act was originally enacted by the Legislature, to distinguish it from other substances included in the schedule by the Minister.

The CC said it would assume that the High Court was not aware of Smit when it handed down its judgment. The CC added that it was satisfied as to the credibility of the applicants’ averments on this score based on the rule set out in the Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A), the version put forward by the applicants must, therefore, be accepted. The CC said that although the High Court was wrong to conclude in its judgment that s 63 was constitutional, it did not issue a declarator in this regard. It simply made an order dismissing the application. The CC pointed out that it is settled law that an appeal lies against the order of a court and not against the reasons underpinning the order. The CC said that given its judgment in Smit the order granted by the High Court in respect of the merits is correct even if the reasons provided by the High Court are not.

The CC pointed that the application ought to have been dismissed because once the CC declared legislation invalid, it was not competent for the High Court to make the order that the applicants’ wanted, that such order are already made by the CC. The CC added that the applicants’ approach to the High Court to seek a declaration of constitutional invalidity of the impugned provision was justified and correct. That the applicants’ position was vindicated by the CC’s judgment in Smit.

The CC made the following order:

‘1. Leave to appeal on the merits is refused.

2. Leave to appeal against order of costs is granted.
3. The appeal against the order of costs is upheld.
4. The costs order of the High Court is set aside and replaced with the following:

“The first respondent must pay the applicants’ costs, including the costs of two counsel”.

5. Each party must pay their own costs in the [CC]’.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2022 (June) DR 28.